Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutor)

[2005] HCATrans 205

[2005] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C8 of 2004

B e t w e e n -

MOHAMMAD ARIF RUHANI

Appellant

and

DIRECTOR OF POLICE (THROUGH THE SECRETARY OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR)

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 19 APRIL 2005, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR J.W.K. BURNSIDE, QC:   May it please the Court, I appear with my learned friend, MR S.D. HAY, for the appellant.  (instructed by Vadarlis & Associates)

MR P.J. HANKS, QC:   Your Honours, I appear with MR S.J. LEE and MR S.P. DONAGHUE for the respondent.  (instructed by Clayton Utz)

GLEESON CJ:   Yes, Mr Burnside.

MR BURNSIDE:   Your Honours, the appellant was one of 319 asylum seekers who were taken to Nauru by the Australian government in late 2001.  They were taken there apparently under the terms of a Memorandum of Understanding between the two countries.  The form of the Memorandum of Understanding which existed then was not in evidence but it had been replaced subsequently, as his Honour below noted, and the current form of it is at appeal book page 68.

GLEESON CJ:   On page 90 it says on the first line:

Each asylum seeker has had their claims for refugee status assessed –

et cetera.  Do you see that?

MR BURNSIDE:   Which paragraph, your Honour?

GLEESON CJ:   Line 1.

MR BURNSIDE:   Yes, I see that.

GLEESON CJ:   How did they make those claims?

MR BURNSIDE:   That does not appear.  There is nothing in the material that demonstrates how it is that any process of assessment was instituted or conducted or subjected to any form of review.

GLEESON CJ:   Or what was being assessed.

MR BURNSIDE:   Or what was being assessed.  It may be inferred that what was being assessed was their compliance with the Convention test for refugee status, but that is only a matter of inference.  Incidentally, it is asserted at some point in the respondent’s argument that the appellant here had had his process completed.  That stands awkwardly with the provision of the visa conditions that we challenge, which is that the visa terminates when their assessment is completed.  It is a curious thing then that the visa continued to be renewed, notwithstanding the suggestion that the refugee status processing was terminated.

KIRBY J:   But that might have been done, might it not, in order to protect rights of appeal and review and all the other things?  We know from our own experience in this Court how long those processes can take.

MR BURNSIDE:   Your Honour, so far as we aware, there are no rights of appeal or review or anything of the sort.  What is being done is not apparently being done pursuant to the law of Nauru, nor is it apparently being done pursuant to the law of Australia.

HAYNE J:   How does that answer you have just given stand with lines 3 and 4 on page 90?

MR BURNSIDE:   It depends on what the words means, your Honour.  There is no provision for review in the sense that we understand it in Australia.  There is no review tribunal.  There is no provision for appeal to a court or for judicial review of the original decision.

KIRBY J:   Is Nauru a party to the Refugee Convention?  Do we know that?

MR BURNSIDE:   I think it was not at the time of the Memorandum of Understanding initially but I stand to be corrected.  I think it might have become lately.

KIRBY J:   That would be a matter of international and public record, one would think. 

MR BURNSIDE:   Yes, it would be.

KIRBY J:   Perhaps we can be informed of that.

MR BURNSIDE:   We will check that, your Honour. 

KIRBY J:   But the applicant – I thought we knew from the other case concerning the right of appeal, that the applicant had made certain applications addressed to the Australian Minister, as had, I think, all of the people who were taken to Nauru pursuant to the Memorandum of Understanding.  Is that not correct?

MR BURNSIDE:   It is difficult to see how they could have done, because they were not in the migration zone.

KIRBY J:   But we were told that the first of the three applicants was in fact granted refugee status in Australia, I think.  So that rather leads to an inference that all of the applicants, and certainly the present appellant, made a similar application.

MR BURNSIDE:   It is true that a number of the people in the 319 have been granted refugee status under the Australian Migration Act.  How that has been done is  ‑ ‑ ‑

KIRBY J:   In Australia, not in Nauru?

MR BURNSIDE:   No.  They have been recognised in Nauru, by whatever process is being undertaken, as being entitled to refugee status and then Australia has apparently, as an act of grace or convenience, given them protection visas, even though they have not apparently made application for protection visas, pursuant to the Migration Act of Australia. There is no suggestion in any of the material that any of these people have been given permission to apply for refugee status in Australia. In fact, section 48A of the Migration Act of Australia, one of the provisions inserted in October of 2001, specifically prohibits an application for a protection visa being made by people who are caught up within what is called the “Pacific solution”.  The legislation which gives authority to the Navy to take people from waters adjacent to Australia and take them to Nauru specifically prevents those people from applying for an Australian visa.

Now, there is provision for an exemption from that restriction and it can only be inferred that the government either has – of Australia, that is – has waived that restriction in the case of some people already assessed as refugees by the process being undertaken on Nauru.

KIRBY J:   I do not know how much this is disputed factual material because you will have seen Dr Hanks’s statement that some of the matters you are putting forward are disputed, but one thought that had occurred to me was that the Australian Consul had a business making an application in order to protect rights of the appellant to seek Australian protection under the Migration Act but you tell me that that is not something that is available to the appellant under that Act.

MR BURNSIDE:   It is prohibited by the Act, as we understand it, unless there is an exemption and the evidence simply does not disclose whether exemptions have been made in any of the cases of the 319 under the initial visa.

KIRBY J:   One would not want to make an interpretation, unless it were required, that stopped Consuls‑General or diplomatic representatives from making applications on behalf of persons that protected them under international law.

MR BURNSIDE:   That was not the application that the Australian Consul‑General made, though.  The application made by the Australian Consul‑General was an application to extend further the visa, with its special conditions attached, which enabled the asylum seekers to remain present in Nauru.

KIRBY J:   We jump ahead of ourselves here.  It is just that I would like to know what regime applied under the Refugee Convention, if any, to the appellant once he got to Nauru, with the permission of Nauru, and was received there.

MR BURNSIDE:   Your Honour, I can say with some confidence that the material does not disclose what regime is being applied on Nauru by the Australian Department of Immigration or by the IOM or by UNHCR.  The material simply does not disclose it. 

The appellant, along with the others who arrived at the same time as he, have been held in a place called Topside Camp.  The evidence demonstrates that he was held against his will.  So much appears from the accompanying statement, which is verified on oath, at appeal book page 4.

KIRBY J:   Is that his statement or his solicitor’s statement?

MR BURNSIDE:   The accompanying statement is ‑ ‑ ‑

KIRBY J:   Where is it?

MR BURNSIDE:   It is at page 3, relevantly, paragraph 6.

KIRBY J:   Does this have to be verified, this document?

MR BURNSIDE:   Yes.  The Nauruan legislation requires it be verified and it is verified on page 4 by an affidavit sworn by Mr Reuben Kun, a pleader.

KIRBY J:   You would say that that document was filed on behalf of the appellant, by his solicitor.

MR BURNSIDE:   Indeed.  He is not a solicitor.  Mr Kun is a pleader, which is a sort of paralegal.  Although Nauruan law recognises barristers and solicitors, it also grants a right of audience to pleaders and Mr Kun was the pleader.

KIRBY J:   How do we know Mr Kun signed this?  The document on page 3 is unsigned.

MR BURNSIDE:   Because ‑ ‑ ‑

KIRBY J:   The document on page 3 is unsigned.

MR BURNSIDE:   Indeed.  The document on page 3 was prepared by our current instructing solicitor.  A difficulty arose in connection with actually filing the documents in Nauru.  It had to be done by a pleader in Nauru and Mr Kun was the pleader who did that. 

KIRBY J:   So it was not signed by Vadarlis & Associates at all?

MR BURNSIDE:   The accompanying statement is not signed; it is verified by the affidavit on page 4.  You will see that it exhibits as EV-1 a document entitled “accompanying statement” and it verifies the information in the statement.  You might infer from the exhibit number that it was intended that Mr Vadarlis would be swearing the affidavit until difficulties with that course emerged.

KIRBY J:   Are we aware of those difficulties in the proceedings?

MR BURNSIDE:   The affidavit initially filed in support of the appeal set out the difficulties in some detail.  The respondent objected to those details on the grounds of relevance.  So they exist on the Court file but we chose not to press the material on the assumption that the respondent did not think those details relevant.

KIRBY J:   May those difficulties be relevant to the suggested want of evidence that is before us?

MR BURNSIDE:   Yes, and we would say the want of evidence in any event is repaired by the affidavit at page 4.  It fills the gap they identify.

HAYNE J:   Let us be quite plain about this, Mr Burnside.  You are not seeking, are you, to amplify the record on which the matter is to be determined?

MR BURNSIDE:   If there are facts concerning the difficulties which the ‑ ‑ ‑

HAYNE J:   Is the answer to my question yes or no?

MR BURNSIDE:   It is a conditional no, your Honour, conditional on this:  if a point is now to be taken which the respondent knows was answered by the material they objected to, then we would wish to amplify the material by reference to what was already ‑ ‑ ‑

HAYNE J:   I thought I made it perfectly plain to you during the course of the single Justice hearings before me that we were to get to an end of this point.

MR BURNSIDE:   Indeed, your Honour.

HAYNE J:   And I thought we had got to the position where you acknowledged that the record was complete.

MR BURNSIDE:   Yes.  In our submission, it is complete because of the affidavit.  We do not understand how it can be said that the affidavit does not verify the facts which it purports to verify.

But the fact that it is verified by Mr Kun, who, as the record shows, was the person who ultimately appeared for the appellant in the court below needs no amplification now unless some point is taken on it, your Honour.  The appellant, along with the others, was granted a visa.  The visa was for six months.  It has been extended from time to time.  The latest extension was granted on 28 January 2004, that is to say, the latest extension for the purpose of this proceeding, and that extended visa is found at page 13 of the appeal book.

KIRBY J:   Where, if anywhere, is there evidence that indicates that the extended visa was not made with a request of on behalf of the appellant?

MR BURNSIDE:   The affidavit at page 3 verifies the accompanying statement which says that:

None of the Applicants has authorized any person to apply for a Nauru visa on their behalf -

and that -

None of the Applicants has applied for or consented to a Nauru visa of any sort.

KIRBY J:   That is as sworn at 20 April 2004?

MR BURNSIDE:   Yes.

KIRBY J:   Is that the time relevant to the latest extension?

MR BURNSIDE:   Yes.  The visa at page 13 is the one which, if valid, was current.  It is the one relied on, at least, as current at the time of the habeas corpus application and on its terms it is for six months from 28 January.  The habeas corpus application was made about three months later.

GUMMOW J:   It does not refer in any way to the Refugees Convention, does it?

MR BURNSIDE:   No, it does not.

GUMMOW J:   Neither does the Memorandum of Understanding, does it?

MR BURNSIDE:   I thought there might have been one reference to it.

KIRBY J:   There is “asylum seekers” in paragraph 5 which is on page 68.

MR BURNSIDE:   Yes.

KIRBY J:   That normally would be taken as a reference to the Convention, I would think?

MR BURNSIDE:   Certainly it is predicated on them being people who were seeking refugee status, but it is correct to say that it does not refer to the Refugees Convention nor does it establish any process by which claims for asylum might be determined.

KIRBY J:   “ASYLUM SEEKERS” is also in the opening preambular statement.

MR BURNSIDE:   Yes.

KIRBY J:   It is “COOPERATION IN THE MANAGEMENT”.  There is a word “OF ASYLUM SEEKERS”.  “Management” I think was a word used in the German documents in 1939, management of human beings.

MR BURNSIDE:   It may be benign or it may not.  What we are concerned with here, your Honour, is that a number of people have been taken against their will to a country they did not want to be in and in that country they have received visas they did not ask for and the visas contain a condition requiring them, in effect, to stay locked up.

GUMMOW J:   What is the end result of the litigation that you seek?  Do you seek to strip the conditions from the visa or just have the visa declared invalid?  That seems to be the relief at the moment.

MR BURNSIDE:   In our submission, the proper relief is that the visa would be invalid and under the arrangements between Nauru and Australia it would seem likely that one of three things would happen.  The first is that they would be reissued visas which are valid according to the law of Nauru so as to continue the management arrangements that the MOU contemplates.  The second is that they would remain on Nauru as prohibited immigrants but, as a matter of discretion, the Principal Immigration Officer is not required to take any steps to remove them or to incarcerate them pending removal.  That discretion is plainly spelt out in the regulations and that is a working arrangement which would be possible, although perhaps unlikely.  The third is that Australia would consider, in arrangements with Nauru, that this was not a workable system and ‑ ‑ ‑

KIRBY J:   The management would be revealed as a defective management of human beings.

MR BURNSIDE:   It would be revealed as defective and if they were not willing to make it effective by simply granting visas for the duration of processing, then presumably Australia would need to address the problem created by that position.

KIRBY J:   There would be a fourth possibility although this might be within your first which is that the Parliament of Nauru would enact a new law which provided specifically and clearly for the particular case.

MR BURNSIDE:   It might. If it did that there might be some difficulties under its Constitution.

KIRBY J:   That is not our concern.

MR BURNSIDE:   It is not, but it suggests that that course may not be likely.

KIRBY J:   Why is that?

MR BURNSIDE:   Because if, let it be supposed that Nauru was only willing to have this handful of asylum seekers on its territory provided they are locked up, then the question is whether Nauru would be capable of passing a valid law which provided for the locking up of people who have not committed an offence and who have been taken there against their will by an arrangement to which Nauru is a party.

GUMMOW J:   But they have committed an offence, have they not, if they are found there without a visa?

MR BURNSIDE:   If they are found there without a visa they have committed an offence but there is a defence, which could be captured as a force majeure defence, if they are taken there without their own consent, if they are taken there against their will, and Nauru will not give them a visa which is valid, then that would seem to be a pretty good defence.  But certainly the offence provisions allow an exception for circumstances which are beyond their control.

GUMMOW J:   Where do we see that?

HEYDON J:   Section 8(6) of the Immigration Act.

MR BURNSIDE:   Yes.  Subsection 6 provides:

It is a defence to a prosecution for an offence against this section if the person charged satisfies the Court that the entry or departure was caused by stress of weather, medical or other emergency or other reasonable cause. 

In our submission, “other reasonable cause” would embrace the fact that they were taken there by the Australian government under an agreement with the Nauruan government and taken there without doing anything of their own volition that resulted in them being there.

The fact that they were taken there under an agreement between the two governments and against their will is what makes this problem so unusual.  All of this occurs against the background that one accepts that sovereign nations can impose restrictions on people’s rights of entry and so on, but where the country voluntarily allows people to arrive on its shores and stay there but they do not want to be there, then it is an unusual circumstance that you have conditions imposed on their stay to which no rational person would ordinarily consent.

GUMMOW J:   Where does your client want to be?

MR BURNSIDE:   In a place of safety.  What has been offered, as you see from the papers, is return to Afghanistan.  It is interesting that the first two applicants below received refugee status whilst the matter was on foot, the first of them as the habeas corpus proceeding began; the second of them as this appeal was pending in this Court.  It therefore seems reasonable that they should say, “If you need to take us somewhere, please don’t take us back to a place of persecution”.

KIRBY J:   Is it revealed on the record as to where those two persons were offered their place of safety or refuge?

MR BURNSIDE:   The record does not show that.  As to the first, it arose late.  I think it arose on the first day of the hearing and he simply withdrew.

KIRBY J:   It is not on the record.

MR BURNSIDE:   It is not on the record.  As to the second, it could not be on the record because it happened whilst the matter was pending in this Court.  I must say also it is not on the record whether those people are still in Nauru or not or whether they have been offered a visa in some place of resettlement.

KIRBY J:   I thought we were told something in the case concerning the appeal as to what had happened to them, but I will just check that transcript.

MR BURNSIDE:   I will check.  I am not aware of that, your Honour.  As I mentioned before, we have identified the conditions attached to the visa as restraint conditions, for want of any other neutral expression.  Putting it bluntly, what it requires is that they must remain locked up in Topside Camp.  It says that is the place they must reside, it says they may not move around in Nauru proper except under security escort and it says:

4.        Residence and movement within Nauru shall be subject to compliance with lawful directions which may be made by the Principal Immigration Officer, the Director of Police –

and so on.  The key is they have to reside in Topside Camp and they must not move outside Topside Camp except under escort.  Australian Protective Service personnel have been inducted into the Nauruan Police Force.  The Nauruan Police Force is responsible for enforcing visa conditions, so the security regime is established.

KIRBY J:   Is that on the record?

MR BURNSIDE:   That they have been ‑ ‑ ‑

KIRBY J:   That Australian police officers have ‑ ‑ ‑

MR BURNSIDE:   Yes.  It is the affidavit of Mr Kennedy which begins at appeal book page 64.

KIRBY J:   I will read that later.

MR BURNSIDE:   Mr Kennedy has himself been inducted into the Nauruan Police Force and he exhibits the document that achieves that.  The final point I want to draw attention to in the visas is condition 5 at page 13 which says:

Completion of humanitarian endeavours shall, for the purpose of this Visa, be as determined by the Office of the President of Nauru, through directions of the undersigned and shall constitute termination of such visa.

So the visa, it would seem, remains on foot so long as humanitarian endeavours continue and it would seem inconsistent with that provision that it can be said of this appellant that the proceedings, humanitarian endeavours, processing, whatever it is, management, of his case had been completed.  If it were so, then his visa would have come to an end and he would then be liable for removal.

KIRBY J:   Well, that is one inference.  Another inference would be that the government of Nauru, this matter pending before this Court has not acted to remove him out of respect for the Court and awaiting its determination.  That would not be an unusual course for a government party to take.

MR BURNSIDE:   I agree with that, but this speaks as at 25 January 2004 and the habeas corpus application was heard on 28 and 29 April 2004.  That was the date at which it was tested.  In connection with that it is significant that an affidavit of Mr Long filed below exhibits, amongst other things, a Scandinavian language analysis of this appellant presumably as part of the process of determining refugee status.

KIRBY J:   What page is this?

MR BURNSIDE:   This is at page 99, and you will see from the top right‑hand corner of the page his reference number is DRA 177 which unequivocally identifies the subject as the present appellant and you will notice the date of this analysis is 8 March 2004, just a few weeks before the habeas corpus application began.  It notes that he is - and this is in the first box on the page – that he “speaks a variety of Dari (Hazaragi) found with certainty in:  Afghanistan”.  So as late as 8 March 2004, whatever processes are undertaken to determine refugee status were still continuing in relation to him.  I wonder if I can interrupt myself.  I have just been passed a note that as at 15 February 2005 Nauru is not a signatory to the Refugees Convention. 

KIRBY J:    So Australia took steps to remove this person to a country which is not a party to the obligations of the Refugees Convention?

MR BURNSIDE:   Yes.

GLEESON CJ:   Removed from where?

MR BURNSIDE:   It does not appear ‑ ‑ ‑

KIRBY J:   On a Royal Australian naval vessel?

MR BURNSIDE:   On a Royal Australian naval vessel.  There is no suggestion they ever entered Australia.  The evidence is simply silent on that. 

KIRBY J:   Australia on a Royal Australian naval vessel took the applicant, the appellant and others to a country that was not a party to the Refugees Convention?

MR BURNSIDE:   That is so, and not from Australia, but from the waters adjacent to Australia somewhere in the north.  Now, the scheme of the Nauruan legislation under which all of this has been done is relatively straightforward.  Do your Honours have the Act handy?

GLEESON CJ:   Is this the Immigration Act 1999?

MR BURNSIDE:   Immigration Act 1999.  It deals in section 7 with arrival of vessels, in section 8 with entry of persons, and I pause to note section 8(1) that:

A person entering Nauru who fails to . . . 

(b)      furnish to an immigration officer such information as he may require or as may be prescribed,

is guilty of an offence.

Section 8(6) we have noted already.

GLEESON CJ:   How does section 8(6) operate?  Suppose you had a yachtsman who, as a result of an emergency of some kind, landed in Nauru without a visa and therefore does not commit an offence by reason of section 8(6), but having landed says, “I think I like it here, I think I’ll stay”, how does the Act work in that case?

MR BURNSIDE:   He would have committed an offence but has a defence available to him under 8(6).

GLEESON CJ:   Yes.

MR BURNSIDE:   The offence would be of entering Nauru.  That is an offence created by section 13(1)(l).

GLEESON CJ:   And then he has a defence.

MR BURNSIDE:   He has a defence to the entering because of the force of “weather” and so on, but it is also an offence under 13(1)(l) to be “unlawfully in Nauru”.  It may be that his continued presence in Nauru after it is possible for him to leave will constitute an offence to which he had no defence.

GLEESON CJ:   Yes.

MR BURNSIDE:   Liking Nauru would probably not amount to ‑ ‑ ‑

GUMMOW J:   That would be the case here, would it not?

MR BURNSIDE:   I think that used to be the way the migration law worked in Australia before the reforms.

GUMMOW J:   I know that, but would not your client be in that class?

MR BURNSIDE:   If he had no visa.

GUMMOW J:   And he has found though, yes.  He would be unlawfully in Nauru.  How would he have a defence under 8(1)(6)?  That would cure the entry but not the remaining.

MR BURNSIDE:   The remaining would be cured under 8(1)(6) if he has been taken there and does not have the practical ability to leave.  It would also appear to be a defence that he was there, continuing to be there ‑ ‑ ‑

GUMMOW J:   No, 8(1)(6) talks about “entry or departure”.  It does not talking about remaining.  That makes sense, using the Chief Justice’s example.  The mariner who is blown ashore has not committed an offence but he has to then obtain a visa or he is committing an offence.

MR BURNSIDE:   Yes.  The question would be whether he is unlawfully in Nauru if brought into Nauru with Nauru’s permission and remaining in Nauru with Nauru’s permission.

KIRBY J:   Permission and co‑operation, into their own country.

MR BURNSIDE:   Yes.

KIRBY J:   How can it not be a reasonable cause if that country participates in a procedure, a management that brings the person into that own country?

MR BURNSIDE:   Yes, although I think Justice Gummow is pointing to the fact that it is only a defence to the offence of entry or the offence of departure rather than the offence of the ‑ ‑ ‑

HAYNE J:   The hypothesis for your argument is that he has no lawful permission to remain.  The only permission he has to remain is the visa.  You say that is unlawful.  Is not the hypothesis for your argument he has no lawful permission to remain?

MR BURNSIDE:   He would have no lawful permission to remain unless a visa were granted freed of the condition which, in our submission, is not authorised by Nauruan law.

KIRBY J:   But why does the law attach to such a case where he is actually brought there?  This is a catch‑22 situation.  He is actually brought there by the government of the country.

MR BURNSIDE:   And that, itself, may imply permission to be present in the country which would be ‑ ‑ ‑

KIRBY J:   But he is brought there.  He is brought there by the country itself.

MR BURNSIDE:   Well, with the permission of the country itself.

KIRBY J:   I do not see that the Immigration Act is intended to apply to a person who is actually brought there by the country itself.

MR BURNSIDE:   The Immigration Act would apply to everyone, including Nauruan citizens.  The question would be whether he is in Nauru without ‑ ‑ ‑

KIRBY J:   But they arrive of their own volition.  They come and pass and other foreigners come and pass or they are swept in but this is a case where a person is actually brought on a Royal Australian naval vessel by arrangement with the government of Nauru itself.  How can it be said that he is an illegal entrant?

MR BURNSIDE:   That is at the heart of the conundrum here because this is ‑ ‑ ‑

GUMMOW J:   The other conundrum is he does not want to remain there.

MR BURNSIDE:   That is right, does not want to remain there but does not have the practical ability to go anywhere, does not have travel documents.

KIRBY J:   He is locked up.

MR BURNSIDE:   And he is locked up.  It is highly unlikely that the Immigration Act of Nauru, or of any other country, was framed with the idea in mind that people would be taken there against their will but with the consent of the country itself and so it is not surprising that the provisions of the Act do not readily match the circumstances of the case.  We have to work with the Act as it is and what we say is that, in these circumstances, the Act does not authorise the imposition of conditions that require, in effect, the private gaoling of the people brought there against their wishes.  When I say private gaoling I mean that literally because nothing in the Act authorises conditions of this sort.  Nothing in the regulations in terms authorises conditions of this sort.  It is all left to the discretion of the public servant, called the Principal Immigration Officer, who decided to impose a condition that amounts to indefinite detention and all of that against the background of a country with constitutional guarantees of various sorts which might have made it difficult to pass laws that would directly achieve this result and the common law presumptions of liberty which will only be displaced if clear words are used.

GLEESON CJ:   Is this Act enacted pursuant to some express grant of legislative power in a constitution?

MR BURNSIDE:   I am sure the Constitution of Nauru contains power to regulate immigration.

KIRBY J:   It is not a federal country and, therefore, they would have entire legislative powers.

MR BURNSIDE:   Yes.

GLEESON CJ:   They have a part of their Constitution to deal with the legislature. Does that deal with any questions of power or does it deal with the constitution of the legislature?

KIRBY J:    Section 27 is:

may make laws for the peace, order and good government of Nauru -

the traditional English provision of a subordinate legislature now applicable to an independent sovereign country.

MR BURNSIDE:   We certainly do not suggest that they did not have power to pass the Immigration Act.  A contingent question, at least, is whether they would have power to pass an amendment to the Immigration Act that said, “In substance, people brought here under arrangements with Australia, may be locked up”.  That would present some formidable difficulties ‑ ‑ ‑

KIRBY J:   By reason of the Bill of Rights or the human rights provisions.

MR BURNSIDE:   Yes, at Article 5 of the Constitution. It is not a question that needs to be dealt with or decided but it is an answer to the suggestion that perhaps all Nauru needs to do is amend its legislation so as to provide for precisely what is being done. Article 5 protects personal liberty and says:

No person shall be deprived of his personal liberty, except as authorised by law –

that is to say, pursuant to some legislation -

in any of the following cases -

None of the paragraphs (a) to (h) seem apt to ‑ ‑ ‑

KIRBY J:   What about (h)?

MR BURNSIDE:   It is “for the purpose of preventing his unlawful entry into Nauru”.  There is no suggestion of this being unlawful entry because it is done with the consent of the government.

KIRBY J:   Governments sometimes do unlawful things you know, Mr Burnside.

HAYNE J:   I thought the hypothesis for the argument was that that which the government did in this case, through the PIO, was unlawful, namely granted a visa that could not be granted.

MR BURNSIDE:   Imposed conditions on a visa which were not valid conditions.

GUMMOW J:   That is the question.  You want the whole thing declared invalid, do you not?  You do not want to sever it.  I am not suggesting you can, but ‑ ‑ ‑

MR BURNSIDE:   In our submission, the condition is severable but, if it were not severed, then under the arrangements with Nauru it is our submission that the government is very likely to issue a valid visa, otherwise it would find itself in some difficulties under its agreement with Australia.

KIRBY J:   To the suggestion that your success in this application takes you out of the frying pan into the fire of a legal precedent your answer is:  let the cards fall where the law of Nauru applies.  That, you expect, will then lead to pressure on the government of Australia, the other party to the Memorandum of Understanding, to change the “management” of people like the appellant?

MR BURNSIDE:   That is one answer.

GUMMOW J:   Why should questions of political pressure be considered by us?

MR BURNSIDE:   I do not raise it.

GUMMOW J:   It may be a motive for litigation but I do not see how we can enter into it.

MR BURNSIDE:   I am not even suggesting it as the principal answer.  All of this anticipates the suggestion that we are out of the frying pan into the fire.  The question is whether it is the fire or just close to the fire.  It is certainly not the case under the law of Nauru that if this visa is struck down completely, that the appellant will then find himself incarcerated.  That can only be done if the Principal Immigration Officer makes a removal order.  The making of a removal order is discretionary and is subject to an appeal or a review.  Only upon the making of ‑ ‑ ‑

GUMMOW J:   It is also an offence, is it not?  It is modelled on the old Australian legislation.

MR BURNSIDE:   It is an offence but ‑ ‑ ‑

GUMMOW J:   Pre-1992 legislation, simply to be found where that is an offence subject to imprisonment.

MR BURNSIDE:   Yes.  There are two possible ways of working ‑ ‑ ‑

GUMMOW J:   Removal is another possibility but it is not the only possibility.

MR BURNSIDE:   Of course.  Then the question is:  first of all, is it an offence or is this a continuation of the fact of entry?  If it is an offence to which section 8(6) does not apply, then the question is:  can the Court predicate with any certainty that any court hearing a case in these circumstances would impose a custodial sentence?  That is far from obvious, given the circumstances in which the people find themselves.  So the result of the visa being struck down completely does not mean that the appellant would find himself back in custody either immediately or at all.

KIRBY J: You might have arguments, given the emphasis placed on personal liberty in Article 5 and in the common law, that he is entitled to at least his liberty in Nauru. Liberty is said to be – this Court itself has said – a very precious thing. Most people think it is such.

MR BURNSIDE:   Indeed, and the Constitution of Nauru seems to think it is such and Nauru has adopted the common law which has long treated it as a most fundamental and valuable right.  We say this because the respondent has suggested that the issue of habeas corpus would be pointless because they would simply be back in gaol, but that does not follow at all, in our submission.  They may or may not.  Even if you assume that they remain present in Nauru unlawfully, it does not follow that they will then be detained at all.  One can see on a prosecution quite good plea material to resist their going into gaol for the offence of being unlawfully present when by hypothesis they have already been detained unlawfully for three and a half or four years.  I was taking the Court through ‑ ‑ ‑

GUMMOW J:   You were taking us through the Act.  We keep interrupting.

MR BURNSIDE:   I was.  I think I was up to section 9:

(1)      The Principal Immigration Officer may grant a non-citizen a permit, to be known as a visa, in accordance with this Act, to-

(a)      travel to, enter and remain in Nauru . . . 

according to its terms.

Subsection (2), critically, provides:

The classes, terms, conditions and fees of visas shall be as prescribed.

That is mandatory.  In our submission, it is wrong for the respondents to suggest, as they do, that section 9(1) provides a plenary power to the Principal Immigration Officer simply to grant visas in any form he or she wished.

KIRBY J:   I think the point of the respondent was somewhat different.  They were saying this provision in the Act itself is in broad terms stating that the officer may grant.  It is not that a person may apply for a visa and then the officer may grant.  Some reference was made to Australian legislation which apparently is in those second terms.

MR BURNSIDE:   Yes.  Well, the question is whether the Principal Immigration Officer derives plenary power to grant visas on any terms at all, or whether he has power only to grant them on terms and conditions et cetera as prescribed.  In our submission, section 9(2) makes it plain that his power is limited to the “classes, terms, conditions and fees” as prescribed, and that takes you to the regulations.

KIRBY J:   You latch onto the word “shall be as prescribed”, but is there anything else that – because the plenary grant of – or the very large grant of power in section 9(1) is addressed to a designated person and gives that person a very ample power.

MR BURNSIDE:   An ample power that is limited by subsection (2) because – and this is particularly important ‑ ‑ ‑

KIRBY J:   Would not one normally limit a power that was granted in such ample terms to cover the myriad of cases and circumstances that can arise in migration matters by something which in subsection (2) seems to be addressed to the prescription of particular classes, categories - detail, as distinct from power?

MR BURNSIDE:   The terms and conditions, in our submission, are more than mere details, and where the regulations under the regulation power prescribe terms and conditions, it is our submission that the power of the Principal Immigration Officer to go beyond those terms and conditions is curtailed.  If that were not so, then subsection (2) would not be needed and the regulation power in its detail would be doing a great deal of work that is not necessary.

KIRBY J:   Well, the subsidiary question that arises, and it is addressed in the written submissions, is if it does not comply with (2) is the exercise of the power then invalid, though granted in such ample terms?

MR BURNSIDE:   In our submission, the exercise of the power is regulated or limited by subsection (2).  If the visa which is granted goes beyond that which is prescribed then it goes beyond what is required by subsection (2).

KIRBY J:   But could that lead to a result, that though granted a visa by the Principal Immigration Officer, because of some technical mistake in the form, that it was not signed by a person or was not on a particular condition inserted, that thereby you render a person liable to be illegally in Nauru, although granted the visa by the officer.  That is not a conclusion to which one would readily come.  Slips do occur, wrong forms are used, people make mistakes on forms.  I mean what you are trying to do is to read down a very broad power, granted apparently in unqualified terms, by something which on the face of things is dealing with detail of the exercise of the power.

MR BURNSIDE:   The question which has to be determined in this case is whether the restraint condition is a condition which is authorised by the Act.  The respondents looked to the general language of section 9(1) for that authority.  In our submission, section 9(2), coupled with the regulations that have been made, lead inevitably to the conclusion that the restraint condition is not authorised.  We do not need to go so far as to say that any slip or departure would invalidate a visa.  All we need to demonstrate is that the conditions we complain of are simply beyond the authority of the Principal Immigration Officer.

KIRBY J:   By the way, where is the provision that says it is for the Cabinet of Nauru to prescribe such conditions?

MR BURNSIDE:   Section 19 is the regulation power.

GUMMOW J:   Do you say 9(1) would be ineffective until there was an exercise in the regulation‑making power under 9(2)?  That if there had been no prescription under 9(2), 9(1) would not be effective, would not be operative?

MR BURNSIDE:   Section 9(1) by itself would run into difficulties as ‑ ‑ ‑

KIRBY J:   It does say it has to be “in accordance with this Act”.

MR BURNSIDE:   I am just hesitating, your Honour, because the idea that a single public official should have completely unconstrained power to determine everything about visas is so striking as to make you pause.

KIRBY J:   It is not the law of Nauru because it says it has to be done “in accordance with” the Act.  That in turn picks up subsection (2).

MR BURNSIDE:   But Justice Gummow was asking how 9(1) would operate absent 9(2) or perhaps absent any regulations made.

GUMMOW J:   Yes, the latter.

MR BURNSIDE:   Yes.  Absent any regulations made ‑ ‑ ‑

GUMMOW J:   It is still in accordance with the Act; it is just that there has not been any prescription.

MR BURNSIDE:   Yes.

GUMMOW J:   It does perhaps throw some light on the significance of 9(1) in contrast with 9(2), that is all.

MR BURNSIDE:   Yes.  The result would be startling and, if I can, I would prefer the coward’s answer that we do not need to answer the question unless I get a stroke of insight, in which case I will come back to it.  The next relevant provision we will go to is section 11, which is important for what it does say in contrast with what section 9 does not say.  Section 11 provides for removal orders:

(1)      The Principal Immigration Officer may make a removal order directing that a person who is a prohibited immigrant or is otherwise unlawfully in Nauru shall, from the date of service of the order . . . 

(a)      leave or be removed from Nauru ‑ ‑ ‑

KIRBY J:   Which category of prohibited immigrant is the appellant in section 10, if any?

MR BURNSIDE:   Well, “prohibited immigrant” is very widely drawn, so he would be a prohibited immigrant by virtue of being unlawfully in Nauru under section 13(1)(l).

KIRBY J:   But is this not all posited on a person who comes to Nauru of their own volition or by force of nature, not by the positive action in which the government of Nauru has participated?

MR BURNSIDE:   Probably.  What I want to draw attention to in section 11 is that the making of a removal order is itself discretionary.  Subsection (5) provides that:

The Principal Immigration Officer may at any time vary or revoke any removal order made –

so he clearly has a discretion whether or not to make a removal order.  A removal order is a precondition for placing a person in prison.  That is found in subsection (4):

A person against whom a removal order is made may, before he leaves Nauru . . . be kept in prison or in police custody, and while so kept is deemed to be in lawful custody.

The provision for a discretionary removal order, which is subject to review, is discretionary and may be revoked, is explicitly a precondition to imprisoning or detaining a person who is unlawfully in Nauru.

KIRBY J:   You say that it is at that point, that is to say in the exercise of that discretion, that the fact that the person has been brought to Nauru by the government of Nauru becomes relevant.

MR BURNSIDE:   It would be a powerful discretionary consideration against the making of a removal order.  The fact that a removal order is needed as a precondition to detention of that person is a powerful suggestion in support of the idea that the Principal Immigration Officer cannot simply impose on a visa a condition of detention whereby the grant of that visa the person is lawfully in Nauru.  If Parliament is concerned to protect unlawful immigrants from detention, it seems unlikely that they were not concerned to protect lawful immigrants from detention.

HAYNE J:   Why were they lawful immigrants?

MR BURNSIDE:   They would be lawful immigrants if there was validly imposed on them a restraint condition.  So by giving them a visa which requires them to be locked up, you acknowledge that they are lawfully there.  It would be a curious thing if a person lawfully there could be detained without more when a person unlawfully there can only be detained as a matter of discretion after a discretionary removal order has been made.

HAYNE J:   The class of persons lawfully there is the antonym of “prohibited immigrants” defined in section 10.  Do you say that no provision of section 10 would be engaged if, as you contend, the visa granted to the appellant was not lawfully granted.

MR BURNSIDE:   If it is not a valid visa then section 10 would apply.  They would then ‑ ‑ ‑

HAYNE J:   And which provision or provisions of 10 would be engaged in that event?

MR BURNSIDE:   Section 10(1)(a):

a person who, not being . . . the holder of a valid permit granted under this Act ‑ ‑ ‑

KIRBY J:   But that has a precondition.

MR BURNSIDE:   That does have a precondition, yes.

KIRBY J:   It says “not being entitled to enter Nauru without a permit”.

MR BURNSIDE:   Yes.

KIRBY J:   The whole assumption of the Act is people who come there voluntarily without permission, whereas this is a case where they have been brought here.  It is the difference between “come” and “brought”.

MR BURNSIDE:   Yes.

KIRBY J:   The Act does not appear to be addressed to the particular circumstances of this entry into Nauru.

MR BURNSIDE:   I agree, with respect.  As I said earlier, it simply is not predicated on circumstances like this.

GUMMOW J:   Which is the paragraph in 10(1)?

MR BURNSIDE:   Well, I am hesitating about ‑ ‑ ‑

HAYNE J:   Reference in 10(1)(a) to “permit” might perhaps be thought to hark back to 8(2).

MR BURNSIDE:   Yes.  The question though then is whether this person is a person entitled to enter without such a permit in circumstances where, as Justice Kirby points out, he is brought rather than coming of his own volition.  But if we suppose for the moment against our interests that 10(1)(a) would be engaged if this visa is invalid and that then they become prohibited immigrants, there would then arise the question whether a removal order would or should be made, whether it would survive a review and whether in any event pending removal under that order the person would be detained or held in police custody.  Each of those steps is questionable, in our submission, in the circumstances in which the appellant found himself in Nauru.

If that is right then, first of all, habeas corpus has some work to do, and very real work to do.  Second, it is a curious thing that a person who is present in Nauru on what we take for the moment to be a valid visa condition can be locked up, but a person who is in Nauru without a valid visa at all cannot be locked up unless various steps are completed.

Can I go then to section 19 briefly.  Section 19 provides that:

The Cabinet may make Regulations not inconsistent with this Act prescribing all matters necessary or convenient to be prescribed for carrying out of giving effect to this Act, and in particular prescribing ‑ ‑ ‑

GUMMOW J:   Do you not have to look at 13(1)(l)?  Perhaps you took us to that already.

MR BURNSIDE:   It is an offence to unlawfully enter or be in Nauru, yes.

GUMMOW J:   Yes.  That is the offence section?

MR BURNSIDE:   That is the offence section, yes.

KIRBY J:   Well, again that assumes that you have entered or come to Nauru voluntarily.  It does not seem to engage the problem.  It is a little bit like the matter that divided this Court in Al-Kateb.  It is a question of whether this statute is addressed to this issue of a person who is positively brought.  How can you then say that the person is unlawfully in or enters?  He has not entered at all.  He has been brought.

HAYNE J:   Well, let it be assumed that somebody is brought to Nauru in the manner contemplated by, amongst other things, section 10(1)(a) as a person in lawful custody for the purpose of serving a sentence of imprisonment on Nauru.  That person does not come voluntarily.  Let it then be assumed that the sentence expires and the person has no permission of any kind whatever to remain in Nauru.  Would that person fall within the second part of 13(1)(l) as being unlawfully in Nauru at the expiration of the sentence?

MR BURNSIDE:   Now, your Honour, I rather thought you were talking about 10(1)(a). 

HAYNE J:   Let me take it a little more slowly then.  Section 10(1)(a) contemplates, amongst other things, the case of a person being brought to Nauru in lawful custody.  True?

MR BURNSIDE:   Yes, and it excludes those people from the reach of the paragraph.

HAYNE J:   Just so.

MR BURNSIDE:   Yes.

HAYNE J:   Entering Nauru in lawful custody is not to enter as a prohibited immigrant.  Let it be assumed that such a person is brought to Nauru for the purpose of serving a sentence of imprisonment in Nauru.  That person has not arrived in Nauru voluntarily.  Is that right?

MR BURNSIDE:   Yes.

HAYNE J:   Let it be assumed that that person has no permission of any kind to remain in Nauru at the expiration of the sentence.  Is that person then within 13(1)(l) in its second path, namely, a person unlawfully in Nauru if that person is found in Nauru at the expiration of the sentence?

MR BURNSIDE:   It would seem so.  Section 10(7) provides specifically that they are:

not a prohibited immigrant . . . for so long as may be necessary for the purpose –

of the completion of a sentence.

HAYNE J:   Yes.  All I am suggesting to you is that 13(1)(l) may have an operation in respect of at least some persons who arrive in Nauru otherwise than voluntarily.

MR BURNSIDE:   Yes.

HAYNE J:   Now, where that leads us to, I do not know.

MR BURNSIDE:   One immediate response, of course, is that it is one of the few cases one can imagine where a person is taken to the country involuntarily and specific provision is made for it so that there is no doubt about that person’s status at the expiration of the sentence.

KIRBY J:   Well, a question might arise under the Constitution, section 5, as to whether such legislation permitting Nauru to become a lock‑up place for other people’s prisoners could be possible consistent with section ‑ ‑ ‑

HAYNE J:   The person I have in mind is someone who has committed an offence against the law of Nauru, is sentenced by the Nauruan courts, serves a sentence in Nauru for an offence committed whilst there, but is not a person entitled to remain in Nauru.

GUMMOW J:   May have been extradited to Nauru.  That would be an obvious example.

MR BURNSIDE:   Yes, and that is the only way I can think that a person would get there, although how they can be taken there in order to serve a sentence rather than to face trial and be sentenced ‑ ‑ ‑

HAYNE J:   Extradition that is done each day.  Extradition happens.

GUMMOW J:   Extradition operates in that way.

MR BURNSIDE:   Yes, but that assumes that the person who has been convicted in Nauru has then managed to leave before starting their sentence.

But, in any event, and that must be a relatively rare case unless they are being returned – extradited for trial ‑ ‑ ‑

GUMMOW J:   It does not matter.  It is a question of ‑ ‑ ‑

MR BURNSIDE:   Yes.  But specific provision is made for it and specific provision is not made for the current circumstances which, with respect, leaves your Honour Justice Kirby’s question to be answered, whether it can be said that the person has “entered” Nauru and whether their remaining in Nauru is something about which the Act speaks at all, given that they have not come to Nauru voluntarily and there is no specific provision made.

GUMMOW J:   It does seem to – 11(6)(a) tends to operate on the basis that for a person who has come from a place ‑ ‑ ‑

MR BURNSIDE:   Yes, it does.

GUMMOW J:   That may not work very well here, either.

MR BURNSIDE:   Very unlikely, if anyone knows which part of the ocean they were in, it seems difficult to fit.  It is another illustration, if I may say, of the proposition that this Act has simply not been cast on the assumption that people will be taken to Nauru involuntarily in these circumstances, there to be held whilst other countries do whatever processing they feel inclined to do.  I do not want to use the term pejoratively, but this might be characterised as “warehousing” people for the purpose of processing refugee status.

KIRBY J:   You do not have to use that word.  Use the word in the Memorandum of Understanding.

MR BURNSIDE:   “MANAGEMENT”, yes.

KIRBY J:   Managing.  Managing human beings.

MR BURNSIDE:   The Immigration Act does not seem to be based on the assumption that its provisions will be used for the purpose of management of refugees or others.  I was at section 19.  It identifies specifically the things for which the regulations can prescribe.  First:

(a)      application for permits . . . 

(b)      the grant, extension and renewal, refusal of grant, extension and renewal, terms and conditions, and expiry and cancellation of permits; and

(c)      the procedure to be followed by persons entering . . . 

(d)      any forms . . . 

(e)      any fees . . . 

(f)       prescribing penalties –

I should mention in passing that there is also provision made for the making of regulations concerning extension in section 9(4)(c).  It is not clear why that has been provided twice, but it is.  So, you see, the regulations may provide for:

(c)      extensions of visas.

GUMMOW J:   Section 9(4)(a) is important, too, because this visa was a global visa, in a sense.

MR BURNSIDE:   Yes, it is.  That is so.  We would not complain about it on those grounds, although it is important also because, to the extent that Nauru’s signature to various international instruments is relevant, they happen to be a signatory to the Convention on the Rights of the Child and the bulk visa which was given initially to 319 people and then extended in relation to 200‑odd includes within its terms a large number of children and infants.  The visa must be found to be valid in relation to them equally, as it would be valid in relation to any adults in the group, if it is to be valid at all.

KIRBY J:   Can I just ask, are you suggesting that in the case of the initial visa given, it was given as a group to all of the persons who arrived on the Royal Australian naval vessel?  Or it was given individually to each person?

MR BURNSIDE:   No, it seems to have been a group visa, as appears from page 30.

KIRBY J:   Was that the subject of the intervention of the Australian Consul on Nauru or not?

MR BURNSIDE:   There is no suggestion that that is so.  There is nothing in the material that indicates how this visa came to be granted.  There is no suggestion that an application was made.  There is no indication in the evidence of who it was from Australia or anywhere else that asked the then Principal Immigration Officer to issue this visa.  All we know is that it exists.

KIRBY J:   I thought there was discussion in the papers that it was granted.  Was the extension granted on the application of the Consul?

MR BURNSIDE:   Yes, it was.  The application to extend the visa is found at page 11.  It is explicitly a request for an extension of the special purpose visa.

KIRBY J:   Can you suggestion a reason why, if the Migration Act of Australia contains a prohibition on the extension to foreign applicants outside Australia in this circumstance of Australian protection under the Migration Act for refugees under the Refugees Convention, what business it was of the Australian Consul‑General in Nauru to be intermeddling in this matter?

MR BURNSIDE:   That probably takes us outside the material disclosed on the record.

KIRBY J:   Is it within the Memorandum of Understanding?  Is there something there that gives some standing to be making steps in respect of persons who have been received by agreement of the government of Nauru on Nauru?

MR BURNSIDE:   The Memorandum of Understanding makes it clear that asylum seekers are to be housed in Nauru as, as it were, a favour to the Australian government, in exchange for substantial grants of financial aid.  You will see, in paragraph 1 ‑ ‑ ‑

KIRBY J:   Section 26 of the Memorandum says:

The Consul‑General will serve as the channel of communication for Australia and officially represent Australia’s continued commitments for the duration of activities undertaken on Nauru related to this MOU.

So, presumably, this was done by the Consul-General of Australia on behalf of Australia.  I just do not, for the moment, understand what Australia had to do with it once these people were received into Nauru.

MR BURNSIDE:   It is plain, from the Memorandum of Understanding, that this entire arrangement is being done by Nauru at Australia’s request, for Australia’s benefit and purposes.

KIRBY J:   So you would say the application by the Australian Consul‑General was an application on behalf of Australia, it was not an application on behalf of your client?

MR BURNSIDE:   Of course.  It is an application on behalf of Australia.

KIRBY J:   For its affairs and concerns and suggested interests, not necessarily coinciding with those of your client.

MR BURNSIDE:   Indeed, not at all coinciding with those of my client.

GLEESON CJ:   Mr Burnside, paragraph 2 of the Memorandum of Understanding refers to an earlier Memorandum of Understanding of 9 December 2002.  Is that in evidence?

MR BURNSIDE:   It is not and it is the case, I think – I am sure this is not contested – the 9 December 2002 Memorandum of Understanding was itself a replacement of an earlier one dated in late 2001 and that is not in evidence either.  May I say, I do not think that it can be assumed that the Consul‑General was always the channel of communication or whether any provision existed in earlier MOUs, although it appears that the MOU of 9 December 2002 probably contained the equivalent of paragraph 26 because this MOU is dated shortly after the request for an extension was given by the Consul‑General – so, presumably, that was done because his role in the matter had already been identified by the previous MOU.

KIRBY J:   I am pretty sure we got those earlier MOUs in the earlier proceeding before this Court.  I remember looking at them, I think, unless my mind is playing tricks.  We got bigger books, I am pretty sure of that. 

MR BURNSIDE:   I do not know, your Honour.  I thought that the record in the earlier phase of the proceeding was limited in the way the record here is.

KIRBY J:   Anyway, it is clear on the MOU that the Consul-General, as one would in any case infer, acts on behalf of Australia and, by reason of the provision of the Migration Act that you have referred to, he is not acting in some benign and supportive, kind and…..nationally protective role on behalf of persons on Nauru.  One would draw the opposite conclusion in the light of the history, I would think.

MR BURNSIDE:   Yes.  The Australian legislation demonstrates that in October 2001 various offshore islands were excised from the migration zone so that people seeking to enter, seeking to reach those islands, would not be seeking to enter the migration zone and, therefore, would not be picked up by the provisions which require such people to be taken into detention.  At the same time the legislation was amended to provide for the transportation of people approaching the excised parts of the migration zone to be taken to other places, which turn out eventually to have been Manus Island in Papua New Guinea and Nauru.

KIRBY J:   Is that in Australian federal legislation, is it?

MR BURNSIDE:   Yes.  The amendments to the Migration Act ‑ ‑ ‑

KIRBY J:   Well, I would like the reference to that, please.

MR BURNSIDE:   Yes, I will get the details and perhaps provide a note later if we may.  The same amendments also prevented - subject to exclusions - it prevented people picked up in those circumstances from applying to Australia for a protection visa.  May I say this.  This entire suite of arrangements I think has been universally referred to as “the Pacific solution” and as appears from the judgment in Ruddock v Vadarlis, the Pacific solution was announced in court during the Tampa litigation on, I think, 1 September 2001 where very sketchy details of its operation were given in open court.  Those details are set out in the judgment, in particular I think the judgment of Justice French.

The chronology of things becomes more clear when you see that the correspondence with the IOM seeking their assistance to conduct the operation in Nauru dates from the middle of September 2001.  So that appears to be the first visible outworking of the arrangements announced in that court on 1 September.

Now, the regulations also have some features which are of obvious importance.  Regulation 3 identifies the various classes of visa which may be granted.  Regulations 4 to 9 then deal with the terms and conditions of each of those various classes respectively.  It is significant, in our submission, that the various regulations dealing with the various visa classes do identify terms and conditions referable to those visas.  Regulation 12(4) is important ‑ ‑ ‑

KIRBY J:   Well, the inappropriateness of most of these on a quick glance seems to be clear.  You know he is not there for a holiday, he is not visiting friends or relatives in Nauru, not attending a convention there.

HAYNE J:   It was said, was it not, that 8(1)(g) was engaged?  If we go to page 13 of the appeal book, the recitals to the disputed visa refer to what is called section 8(1)(g) of the regulations.

MR BURNSIDE:   Yes.

KIRBY J:   That assumes he enters Nauru instead of assuming, as the facts appear to indicate, that he was brought there by the government.  “Entry” implies to my mind, and most visas in the world are granted to people who of their own volition or of necessity go into a place.  This is a person who is brought there by the government.

MR BURNSIDE:   Yes, when looking at regulation 8(1)(g) it may be necessary to qualify that observation, which I otherwise agree with, your Honour.  Regulation 8(1)(g) refers to regulation 12(4), and regulation 12(4) – I should take you through the whole of regulation 12.  Regulation 12(1):

Subject to sub-regulations (3) and (4)-

(a)      an applicant for a visa shall hold a valid passport which is not due to expire within three months -

Regulation (2) provides for transferring a visa onto a new passport.  Sub‑regulation (3):

This regulation does not apply to a person whose arrival in Nauru is caused by stress of weather, medical or other emergency, or other reasonable cause.

It does distinguish ‑ ‑ ‑

KIRBY J:   Where was that?

MR BURNSIDE:   Subregulation (3):

This regulation does not ‑ ‑ ‑

KIRBY J:   Yes, (3) of what?

MR BURNSIDE:   I am sorry, regulation 12(3).

KIRBY J:   I see.  So here they have slipped into a different language which may be relevant, namely “arrival” as distinct from “entry”.

MR BURNSIDE:   That is quite right.

GUMMOW J:   That is reflected in 8(1)(i), is it not:

a person who arrives in Nauru due to stress of weather ‑ ‑ ‑

MR BURNSIDE:   Yes.

KIRBY J:   But those conditions do not arise here, do they?  Is it suggested that this was a case of arrival due to “weather”- no, “medical” – no, “other emergency or other similar cause”.  It is then a question of whether being picked up on the high seas by a Royal Australian naval vessel brought to Nauru under a Memorandum of Understanding is a similar cause to “stress of weather, medical or other emergency”.

MR BURNSIDE:   It may be similar cause in this sense, that “stress of weather, medical or other emergency” all carry with them the notion that the person’s arrival is not something which they sought or desired, but it is rather force of circumstances.

KIRBY J:   It is humanitarian, Mr Burnside.  These are humanitarian rescue provisions which the whole international community observes.

MR BURNSIDE:   It may be but, with respect, your Honour, it may be that 8(1)(i) is capable of supporting the circumstance that happened here.  Rather than the appellant entering Nauru in accordance with 8(1)(g), he has arrived in Nauru due to forces beyond his control.  It is not too surprising that 8(1)(i) does not perfectly predict the circumstances that in fact apply here, but it is nevertheless 8(1)(i) that applies more aptly to the circumstances which exist if any part of the Act is capable of applying.

KIRBY J:   Yes, I agree with that.

MR BURNSIDE:   Because “arrival” is the word that is used, it is to be set in contradistinction to “entry” where used elsewhere.

HAYNE J:   If that is a point that is to be made, it must surely take account of regulation 10:

(1)      Where . . . weather medical or other emergency or other reasonable cause –

gives rise to entry.  Are we to understand you to make some point based on a distinction between “arrival” and “entry”?  If so, what is the point and how does it take account of regulation 10?

MR BURNSIDE:   There is a difficulty in 10 because its language does not meet the language of the corresponding regulations.  It says “enters” where 8(1)(i) says “arrives” and 12(3) says “arrival”.

HAYNE J:   Do you make a point founded on a distinction between “arrival” and “entry”?  If you do, what is the point and how does it take account of regulation 10?

KIRBY J:   Regulation 10 applies to that class of persons who are in humanitarian emergencies who voluntarily enter but there are some, including your client who does not appear to have done that.

MR BURNSIDE:   Yes.

KIRBY J:   There is a juxtaposition which cannot be escaped, it seems to me, in regulation 8 between “enters”, the word used in (g) and other subregulations, and “arrives”, which is a more neutral and descriptive provision, and does seem, as you seem to have conceded, to pick up your client.

MR BURNSIDE:   It would and it would give power to grant a visa under regulation 10(2).

HAYNE J:   I fear I still do not understand the answer you offer to my question.  Do you make a point about distinction between “arrival” and “entry”?  If you do, what is the point?

MR BURNSIDE:   The distinction between “arrival” and “entry” is that entry is voluntary and arrival is not.  Arrival is the consequence of forces beyond the person’s will or control and arrival in those circumstances, in our submission, invokes regulation 10(2).

KIRBY J:   But is Justice Hayne right?  Does it matter?  If you slip into one of those sub‑regulations in 8, what does it matter that you do not slip into others?

MR BURNSIDE:   It may not, because 12(4) is what was acted on and that is the language of arrival.  I may have been opportunistically exploiting a distinction Justice Kirby suggested but, on working it through, I am not sure it is an opportunity after all.

KIRBY J:   It does not seem to lead anywhere.

MR BURNSIDE:   In any event, 12(3) I have taken you to.  12(4):

Notwithstanding sub‑regulation (1), the Principal Immigration Officer may, on humanitarian or other grounds, permit a person who arrives in Nauru without a passport to enter and remain in Nauru, or where the person has already entered Nauru, to remain in Nauru and for the purpose may grant to the person a special purpose visa, on such conditions as the Principal Immigration Officer thinks fit.

GUMMOW J:   I think it was put to you that – it is put by the other side, I think – that the other grounds could include giving effect to the Memorandum of Understanding.

MR BURNSIDE:   That may be, but the question is whether the provision for grant of a special purpose visa “on such conditions as the Principal Immigration Officer thinks fit” expands his power to impose conditions without any limits.  In our submission, that power has to be read subject to the power to impose conditions found elsewhere in the regulations.  Specifically, the question is this, does regulation 12(4) permit, by inference, the imposition of a condition which requires the person to remain in indefinite detention?  In our submission, it does not.

KIRBY J:   One would think that any such power would be spelt out in clear language.  Indefinite detention being possibly forever, it would be spelt out.

MR BURNSIDE:   Yes.

GUMMOW J:   But it is not, is it?  The visa does not permit indefinite detention.  It is…..is it not?

KIRBY J:   To keep reviewing it.

MR BURNSIDE:   Detention without any predictable terminal point.

GUMMOW J:   Condition 5.

MR BURNSIDE:   But the question is, when will condition 5 be satisfied?  Is it six months?  It seems that the initial MOU and it seems that the initial visa assumed that these arrangements would be completed within six months.  As it happens, some years have gone past and they are still not completed.  That, with respect, is indefinite detention.  It does not mean permanent detention, just detention for an indeterminate period.  It is, with respect, extremely unlikely that the Parliament in Nauru intended to confer on a civil servant, without express words, the power to require people to be placed in detention in circumstances where those people have entered the country with the permission of Nauru.

HAYNE J:   In assessing that submission, what, if any, account is to be taken of clause 4 of the Memorandum of Understanding appearing at page 68?  Is that a relevant consideration?  Something that is irrelevant to the point you make?

MR BURNSIDE:   It does not affect the point we make, with respect, your Honour, because, given the common law’s jealous protection of the right of liberty and given the constitutional setting against which this legislation and these regulations are made in Nauru, one would expect that any condition on the visa which provided for – I am sorry – any power to impose conditions on a visa would spell out explicitly that that power to make conditions included a power to cause people to be detained.

HAYNE J:   That is a different proposition from the one you earlier advanced.  The proposition you earlier advanced was that the conditions may not extend to imposing indefinite detention.  You now move to a proposition that the conditions may not include imposing detention.  Do you make both points?

MR BURNSIDE:   Both points.  And since the conditions in fact amount to indefinite detention, in the sense that its period is indeterminate until it comes to an end, that is aptly described as “indefinite detention” and it stands at odds with common law assumptions about liberty and with the constitutional framework of Nauru.

GLEESON CJ:   What do we know about this body called IOM, the International Organisation for Migration, apart from what appears, for example, on page 52 at line 14?

MR BURNSIDE:   Mr Winter’s affidavit is the extent of our knowledge of IOM.

GLEESON CJ:   What is the meaning of the expression “international civil servants”?

MR BURNSIDE:   I have no idea, your Honour.  In fact, it sounds like a contradiction in terms.

KIRBY J:   I do not agree with that.  I have known some wonderful international civil servants.

MR BURNSIDE:   It may be that people who work in the United Nations, for example, in the administration could be regarded as international civil servants, but I do not know what the term means.

GLEESON CJ:   Should we infer from Mr Winter’s affidavit that in a practical sense it is the IOM who operate this facility?  Topside, I mean.

MR BURNSIDE:   In part, that is right.  They appear to undertake the day to day management of it, but not the security of it.  So the practical detention is done by members of the Australian Protective Service in their capacity as members of the Nauruan Police Force.

GLEESON CJ:   Who is doing the processing of these claims for refugee status?

MR BURNSIDE:   Members of the Department of Immigration of Australia for the most part, it seems.  As I understand it, the people who were initially taken there from Tampa were processed by UNHCR people.  My understanding is that the Department of Immigration are looking at the circumstances of the remainder and UNHCR seem to come and go from time to time.

GLEESON CJ:   Does the evidence show who dealt with the application of your client?

MR BURNSIDE:   I do not think so.  I do not believe so, your Honour, no.  Nor do we know what the process is by whomever undertaken.

GLEESON CJ:   No.  I think we looked at this earlier, but we see reference to an application and then a decision and then a review.

MR BURNSIDE:   Yes.  But the review, I think, is simply the same people looking at the matter again, not a review in the sense that we would understand it here.

GLEESON CJ:   Well, there is just no evidence about that, I gather?

MR BURNSIDE:   There is not.

GLEESON CJ:   Nor is there any evidence about who those people are.

MR BURNSIDE:   No. 

KIRBY J:   But there is the provision in paragraph 4 of the Memorandum of Understanding that Australia will ensure that each person will be processed and have departed Nauru within a short time.

MR BURNSIDE:   Yes, but that does not tell us who is going to be doing the processing or under what regime.  As short a time as possible may vary between a few months and a few years and no one can say at the outset.  No one can say now when the process is going to be finished.

KIRBY J:    Well, given that Nauru is, as we are told, not a party to the Refugees Convention Protocol, it is hard to see to what norm of municipal law the processing would be addressed.

MR BURNSIDE:   Yes, it is.  Your Honour the Chief Justice, at page 105 there is a fragment about this.  In paragraph 3 the deponent says that:

This year the Department of Immigration conducted a re‑examination of DIMIA Afghan cases on Nauru.

That tells us two things.  First of all, DIMIA has some role in looking at some of the cases and, second, by necessary inference, other people, unidentified, are also apparently handling some of the cases.

HAYNE J:   Paragraph 2 of the same affidavit is rather more explicit, is it not, page 104, line 20 and following? 

Both were processed by DIMIA case officers ‑ ‑ ‑

MR BURNSIDE:   Quite, and that is why there is the reference in paragraph 3 to the DIMIA Afghan cases, but it does not tell us who else is processing the non‑DIMIA Afghan cases, for example.  I think it is uncontroversial that much of the processing has been done by DIMIA officers, although what questions they look at we do not know.  Some have been done by UNHCR officials and how the caseload is divided we do not know. 

KIRBY J:   I am getting a bit lost.  What is the point in the regulations to which this is addressed?

MR BURNSIDE:   It is not.  This arose out of a discussion with Justice Hayne about whether the detention provided by the special purpose visa is indefinite or not.  Memorandum of Understanding Article 4 provides that the processing will be done as soon as “reasonably possible” and then the question arose, who is doing the processing and what is “as soon as reasonably possible”? 

GUMMOW J:   And against what criteria?  The criteria, plainly enough, on page 104 is the Convention.

HAYNE J:   And in that respect am I right in understanding that, in fact, some applications or some questions about protection are assessed, as this gentleman’s title would suggest, offshore?  He is an acting director of an Offshore Asylum Seeker Management Branch.  I thought there was some suggestion that some applications are dealt with offshore, are they not, rather than those who come onshore?

MR BURNSIDE:   Offshore means Nauru.

HAYNE J:   No, offshore meaning, for example, those in refugee camps conducted by the UN are sometimes examined, are they not, by Australian officials against the Convention and Protocol criteria to determine eligibility for protection visas?

MR BURNSIDE:   Under the resettlement program, people are accepted offshore as deserving protection visas and, presumably, by reference to the same standard in the Refugees Convention.  But we have understood “offshore” in this context to mean Nauru and Mannus Island, to the extent that that was relevant.  Whether it is any broader than that, we simply do not know.  That is within the respondent’s camp.

KIRBY J:   How would one reconcile that with the provision of the Migration Act – what was that section you said that excluded application to Australia?

MR BURNSIDE:   I am going to check the reference, but I think it is 48A or thereabouts.  I will get that over lunch.

KIRBY J:   I suppose it could be reconciled.  Justice Hayne is right, I think, in saying that Australia has people in overseas refugee camps.  Many Cambodians came to Australia from camps in Thailand in that way.  But maybe it could be reconciled in that our officers offshore look to see whether some third nation will accept them. 

MR BURNSIDE:   The offshore processing in Nauru does look for humanitarian resettlement in other countries apart from Australia.

KIRBY J:   New Zealand, I think, took a lot of people.

MR BURNSIDE:   New Zealand has taken many and I think we have asked Norway and various other countries if they will take people.  You asked a question, how that is to be reconciled with the provision that was introduced into the Act in October 2001 – I think that the provision I have in mind, and I think it is 48A but I will check it.  It is specifically referable to people who approach Australia and seek to go into the excised portions of the migration zone, so it would not apply to people, for example, in camps in Sudan.  Its operation is specifically confined to the so-called “Pacific solution”. 

GUMMOW J:   This review that is spoken of, at page 105, re‑examination.  That would require consideration, would it not, of the situation in Afghanistan as it now exists?

MR BURNSIDE:   Presumably.  We simply had no information about that, your Honour.

GUMMOW J:   But in terms of the Convention.  If you are simply applying the Convention that is how you would do it.

MR BURNSIDE:   If the re-examination involves a consideration of the test of refugee status as at the present, then naturally that would involve consideration of conditions in Afghanistan at the moment.

GUMMOW J:   Which have changed.  Yes.

MR BURNSIDE:   Which have changed, but not necessarily for Hazaras.  It is interesting that this appellant is Hazara, according to the language analysis.  People who come from Kabul and belong to different ethnic groups, Tajik or Pashtun, for them circumstances have changed.  For Hazaras, apparently not.  The ouster of the Taliban – I think it is a matter of public record – was useful for Pashtuns and Tajiks but made no difference whatever to Hazaras, whose persecution began a century before the Taliban got power.

The other regulation I wanted to go is regulation 16 which, in our submission, governs the apparent width of regulation 12(4).  Regulation 16(1) provides:

In granting a visa, the Principal Immigration Officer may impose such additional conditions, not inconsistent with the Act or these Regulations, as he considers necessary or desirable in the circumstances.

That, in our submission, can be read one of two ways.  If he is entitled to impose conditions that fall within the scope of the conditions already provided for by regulation, then there is no invalid sub-delegation.  If, on the other hand, it is intended to confer on him a general unlimited condition-making power then that would be an invalid sub‑delegation.  The words of limitation, “not inconsistent with the Act or these Regulations” suggest that it is not intended to sub-delegate the power to create conditions but merely to impose refinement of the conditions that are otherwise provided for by the regulations and the Act.

To complete this pass through the regulations, regulation 18 provides:

The Principal Immigration Officer may, unless he considers that it would not be appropriate for him to do so, upon-

(a)      application by the holder of a visa which may be renewed or extended –

I omit (b) – he may –

renew or extend the visa –

and we emphasise the words that his power to renew or extend the visa is a power conditioned on an application by the holder of the visa.  That has two consequences.  The first is that, in our submission, the visa which is current at the time of the habeas corpus application was plainly not an extension which was applied for by the holder.  Second, it underlines the proposition that visas that are imposed against the wishes of a person are not the visas of which the regulations or the Act speaks.

KIRBY J:   Now, you say “imposed against the wishes”.  I understand a point you make concerning the lack of request and authority, but what evidence is there in the record that is against the wishes of the appellant?

MR BURNSIDE:   The affidavit verifying the supporting statement makes it clear that he does not want to be where he is, and has not sought or authorised anyone else to seek a visa.  It is on page 3:

The Applicants are held in Topside Camp against their will . . . None of the Applicants has applied for or consented to a Nauru visa of any sort.  None of the Applicants has authorized any person to apply for a Nauru visa on their behalf.

KIRBY J:   Where is the affidavit verifying that?

MR BURNSIDE:   On the next page.

KIRBY J:   Is that sufficient to, as it were, make it the appellant’s statement as distinct from a statement by his solicitor?

MR BURNSIDE:   There is nothing in the ‑ ‑ ‑

KIRBY J:   Do you understand that point to be taken by the respondent?

MR BURNSIDE:   I do not, and it would be surprising if it were because that is where the practical ‑ ‑ ‑

KIRBY J:   You can deal with that in reply if need be.  It may not be a point that is taken.

MR BURNSIDE:   Yes.  They have said ‑ ‑ ‑

KIRBY J:   There is something written there that alerts me to that possible problem.

MR BURNSIDE:   They have said that there is no evidence that this was done against their will.  In our submission, that affidavit, coupled with the statement it verifies, is evidence of that fact.  If that were not evidence of that fact, if that fact is contradicted, then it is difficult to see how they could have objected to the relevance of the material concerning the practical difficulties associated with lawyers getting to Nauru in order to do all of this.

KIRBY J:   It had to be done by a pleader.  Presumably it was for a reason.

MR BURNSIDE:   Yes, and you will see that he refers to the accompanying statement as exhibit EV-1, which suggests that it was intended to be exhibited to an affidavit of Mr Eric Vadarlis, who is the solicitor identified on the accompanying statement.  In our submission, your Honours, the Principal Immigration Officer’s power to grant a visa comes from section 9(1).  He can grant a visa according to its terms.  9(2), the terms and conditions are as prescribed.  Section 19 provides that regulations may prescribe the terms and conditions, et cetera. 

Regulation 8(2) provides for conditions to be attached to special purpose visas.  Regulation 12(4) provides for special purpose visas to people without a passport “on such conditions as the Principal Immigration officer thinks fit.”  Regulation 16 requires that additional conditions may be imposed but “not inconsistent with the Act or these Regulations”.  In our submission, regulation 16 draws a boundary around the additional conditions which may validly be imposed on any visa by the Principal Immigration Officer.  If not so limited, it would involve an illegitimate sub‑delegation of legislative power. 

The sorts of conditions which might be imposed that are not explicit in the regulations would be, for example, where the regulations provide for a residence visa which may be for any time.  A condition limiting the time may validly be imposed on a residence visa.  Business visas may be granted for one or more than one entry.  It would be a valid exercise of the power to grant conditions to impose a condition that the number of entries be limited to a particular number.

In any event, in our submission, the Principal Immigration Officer does not and could not have power to require a person to be held in detention unless the Act provided so in the clearest words.  Liberty, as we have already discussed, is a fundamental and important right.  The common law notions about the importance of liberty are well understood.  I would like to take the Court to just a couple of passages in the cases that we have referred to.  First, in R v Bolton; Ex parte Beane, first in the decision of Chief Justice Brennan ‑ ‑ ‑

KIRBY J:   Are there any decisions of the Nauru Supreme Court on this issue?  We are sitting here as the final Court of Nauru, not of Australia.

MR BURNSIDE:   Yes.  Getting access to the decisions of the Nauru Supreme Court has proved very difficult, and I cannot tell the Court of decisions of that court which deal specifically with the common law right of liberty.

KIRBY J:   I have seen reports from that Supreme Court from time to time in the series called The Law Reports of the Commonwealth.  I do not know on this subject, but, generally, of the judge constituting the Supreme Court.

MR BURNSIDE:   Yes.  The short answer is I cannot help your Honour on that.

KIRBY J:   Yes.

MR BURNSIDE:   If I manage to find one, I will let the Court know.  Can I mention, and this is spelt out in detail in our written submissions, it is clear that Nauru has adopted the common law of England, as it stood in 1968, and it is clear that the common law in England, as in Australia, recognises the liberty of the individual as a fundamental and important right.  Justice Brennan at page 520 to 521 in Re Bolton again with the words:

Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force.

At 523 at about point 1 on the page, his Honour said:

The law of this country is very jealous of any infringement of personal liberty . . . and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right –

Further down, at about point 7 on the page, his Honour says:

The Constitution of the Australian Commonwealth does not contain broad declarations of individual rights and freedoms which deny legislative power to the Parliament, but the courts nevertheless endeavour so to construe the enactments of the Parliament as to maintain the fundamental freedoms which are part of our constitutional framework.  It is presumed that this is the intention of Parliament, though the courts acknowledge that the balance between the public interest and individual freedom is struck not by the courts but by the representatives of the people in Parliament.

Although that is talking about the Australian constitutional context, the same, we would say, applies with equal, if not greater, force in Nauru.  Equal force, because it has also adopted the common law, and greater, because it has a constitutional guarantee of personal liberty.

HAYNE J:   The answer given in the court below seems to be either wholly or partly encompassed in paragraph 23 of the reasons at page 114 of the appeal book.  What do you say to the considerations identified by Chief Justice Connell in that paragraph?

MR BURNSIDE:   I am sorry, your Honour, which was the paragraph?

HAYNE J:   Paragraph 23, page 114 is the answer given, or perhaps it more than one answer.  As I understand the reasoning, it is, one, any condition on a visa is a restraint.  Two, restraints on visas or conditions of visas are an inevitable and likely consequence, see, for example, transit visas.  Transit visas stay in the cattle race of the transit lounge.  Further, in the particular circumstances of Nauru, conditions about place of residence are to be expected.  Therefore, goes the reasoning, in all these circumstances the restraints now imposed are of a kind that fall within the class of conditions.  Now, what is the answer made?

MR BURNSIDE:   Two answers.  The first is that those observations about all visas being a restraint are apt ‑ ‑ ‑

HAYNE J:   All conditions on visa are a restraint.

MR BURNSIDE:   All conditions on visas being a – well, not necessarily a restraint of liberty.  They may be a restraint of some other less fundamental rights.  So, for example, a restraint concerning the place at which you must stay, “You must stay in this hotel or that one”.  Where there are only two hotels in the country, that might be regarded as a restraint of the freedom to choose between hotels, but it is not a restraint on liberty in the sense – well, if it is not coupled with the provision that “You must not leave the hotel at all unless under escort”.

Any restraint in any visa is, generally speaking, the subject of agreement.  That is to say, you can take the visa on the terms offered or choose not to.  That is not the case here, where the visa has not been sought, where the holder of the visa has had no choice whatever in whether ‑ ‑ ‑

HAYNE J:   That seems to be verging off into another stream of the argument.  I understood this stream of the argument to focus upon the limitation, implicit, you say, in the regulatory provision, on such conditions as the PIO thinks fit. 

MR BURNSIDE:   Yes.

HAYNE J:   You say that does not extend to a condition for either indefinite detention or detention at all.

MR BURNSIDE:   Yes.  Indefinite detention or detention of any sort.  That is to say, complete constraint in the place where you are and must stay, in our submission, involves a deprivation of a fundamental liberty.  It is not like – not in any way like – the requirement that you stay at one hotel rather than another.  That restraint, attacking as it does a fundamental freedom, is not within the power of the Principal Immigration Officer unless clear words entitle him to impose such a restraint.

As Justice Brennan said in the passage I just read, these liberties are not to be taken away except by clear words, and there are no words at all in the Act or the regulations which could be seen to allow the result that a person can be taken against their will into a place where they will be detained for months or, as it happens, years.  That, with respect, is very different from the sort of restraints one might expect on a transit visa, where the only purpose is to spend a few hours between connecting flights, for example.

KIRBY J:   Justice Connell, in paragraph 27, said:

I have no difficulty in finding that, for the purposes of habeas corpus, the Applicants were in a custodial situation.  They were confined to a particular location . . . and that location had certain restraints such as perimeter fencing, controlled entrance and exit, and an overall police control.

MR BURNSIDE:   Yes.

KIRBY J:   So that it does appear to put restraints – which, as you say, have lasted now for years – on liberty.

MR BURNSIDE:   Yes.  It is plain, beyond doubt, that the appellant and the others are locked up.  They are not free to do anything except remain within Topside Camp or the Former State House Camp, where it is true they are fed and they have access to some facilities, but they are not at liberty to go anywhere else, and that, whichever way you look at it, is detention.  The question is whether depriving them of their freedom indefinitely is something for which the Act or the regulations have provided in such unmistakable terms that the Court is required to give effect to it, and, in our submission, there is nothing in the legislation or the regulations that could be seen fit to justify such condition.

It might be more difficult at the margins if the provision were, “You must live in Topside Camp, but during daylight hours you can come and go as you like”.  That would be a much more difficult condition to attack.  But permanent detention for as long as it takes to process – for as long as it takes to manage them in whatever way they are being managed, in our submission, is completely incompatible with basic assumptions of liberty and no express words permit a deprivation of that liberty.

Now, this obviously at first glance stands in contrast to the principle derived from Vattel and acknowledged in Cain’s case and acknowledged in Robtelmes v Brenan that every sovereign nation is entitled to regulate the entry into its territory and may impose such conditions as it sees fit on those who wish to enter.  We do not challenge that proposition.  But the fact is that the sovereign nation of Nauru has not seen fit to impose such conditions.  It has not passed an Act which allows it to impose such conditions. 

Its constitutional framework probably would not permit an Act that allowed conditions of this sort, if it chose to exercise that otherwise sovereign right, and, unquestionably, nothing that the country has enacted has in terms permitted the Principal Immigration Officer of Nauru to impose what amounts, in effect, to a private gaol order.

KIRBY J:   You say private gaol order because of the arrangements that have been made with non‑Nauruans to maintain the security of this detention.

MR BURNSIDE:   No.  By that expression I mean an order which amounts to going to gaol; that is to say a place of confinement for as long as it takes - imposed not by an Act of Parliament, not by clear regulation, not by a court but by a public servant acting under words of the most general sort.  That, in our submission, can aptly be described as a private gaol order.

Now, it is suggested in the respondent’s submissions that it does not matter that maybe initially the restraint condition was invalid, that it is now to be tested against the latest Memorandum of Understanding and the extension visa granted in January of last year.  In our submission, if the condition is beyond power it remains beyond power regardless of how much time goes past and regardless of changes in circumstances.  It does not matter, in our submission, that the appellant could in theory have opted to go back to Afghanistan and face whatever perils might lie there for him.  That circumstance does not make the condition valid within the law of Nauru.  If it is not valid at the outset, and if it is not valid for every one of the people subject to its force, then it is not valid now in respect of this appellant.

I say “not valid” in respect of the various people who are affected by it identically, as the Court will see from the extension visa, in particular at page 41 and following, the visa has annexed to it the 283 asylum seekers upon whom the visa and its conditions have been imposed ‑ ‑ ‑

KIRBY J:   What point are you making?

MR BURNSIDE:   At page 44 you will see - if you look at the list on page 44 you will see that almost all of the people listed on that page are either children or infants.

GLEESON CJ:   What does HOF stand for?

HAYNE J:   Head of family.

MR BURNSIDE:   Yes, head of family.  You will see that in fact a number of them towards the foot of the page are infants, who were presumably born in Nauru given the time frame within which these things have happened.  Three of them are below one year of age.

KIRBY J:   But what is the point you are making?

MR BURNSIDE:   The point I am making is if the question is whether the condition is valid its validity has to be tested at the time it was granted and in reference to all of the people on whom it was imposed.  Changed circumstances do not make it valid.  Even if it were a matter of choice for an adult who is subject to the condition to say, “Well, this is unbearable.  Let me get travel papers by one means or another and remove myself from this”, even if that were theoretically possible, to enable him to escape the terms of the condition, it cannot be said of any of the other people, or at least of all of the other people, who are equally affected by the condition.  So the Court is entitled to approach this question as if it is a question, “Is it valid for the Principal Immigration Officer of Nauru to impose on a one‑year‑old infant an obligation to remain in detention for as long as humanitarian investigations proceed”, whether that lasts the rest of his life or just the rest of the year.

GUMMOW J:   So your client appears at page 19. 

MR BURNSIDE:   At the very top of page 46.  Of course, the earlier list he also appears on ‑ ‑ ‑

GUMMOW J:   What does “PA” stand for?  Do you know?

MR BURNSIDE:   No.  My learned friend says Pakistani, but that it is not so, it is Afghan as appears from a later column.  I do not know, your Honour, I am sorry.  I was tempted to say “parent”, but that is not consistent ‑ ‑ ‑

GUMMOW J:   He is now aged 20 or he was aged 20 in 2004.  I think when he arrived he was aged 18.

MR BURNSIDE:   On page 32.

GLEESON CJ:   Unfortunately, what appears on page 39, as the heading of these columns, is illegible. 

MR BURNSIDE:   Yes.  I have to confess most of the text on page 39 is illegible, to me at least.  I just do not know.  It may be that Mr Hanks knows.

GLEESON CJ:   It is the same with page 41.  There are headings there, but they have been obscured.

MR BURNSIDE:   Yes, impossible to read. 

KIRBY J:   You told us that Nauru is a party to the Convention of the Rights of the Child and that has a provision in it, does it not – I think it is Article 18 – saying that the detention of children will be a last resort.  Is that correct?

MR BURNSIDE:   Yes, that is so.

KIRBY J:   Do you submit that that should be taken into account in giving meaning to the law of Nauru in this case?

MR BURNSIDE:   Yes, indeed.  Our primary submission is that it is quite plain that there are not sufficient clear words in the legislation or the regulations to justify a condition which restricts liberty the way this condition does.  Our second is that if the matter is ambiguous, the ambiguity should be resolved by reference to Nauru’s international obligations ‑ ‑ ‑

KIRBY J:   The first would be by reference to the Nauru Constitution and its Bill of Rights or a provision relating to liberty expressly stated in that Constitution.

MR BURNSIDE:   It is expressly stated in the Constitution and it is clear in the common law, as exemplified by Bolton and other cases which say similar things, a person’s liberty is not to be readily understood as being taken away unless by clear words. There are no clear words which effect that result except the words of the condition itself, and the question is whether anything justifies that condition. In our submission, nothing does. But if the legislation and the regulations are ambiguous, then you look at the international conventions and, no doubt, to the Constitution. The international conventions include the Convention on the Rights of the Child and this visa affects children, just as it affects adults, and it affects them indiscriminately.

HAYNE J:   And under Nauruan law does one have regard to international law in the same fashion as an Australian court does or does one apply some other and different principle?

MR BURNSIDE:   In our submission, as a matter of the ordinary process of statutory construction, a court dealing with the legislation of a country which is party to international conventions will prefer a construction of the legislation that accords with the provisions of those conventions rather than contradicts. 

HAYNE J:   But is the process the same process that this Court has spoken of, I think, in Kartinyeri and elsewhere?

MR BURNSIDE:   In our submission, yes, if it is simply an aid to construction of an ambiguous provision.

KIRBY J:   Is Nauru a party to the International Covenant on Civil and Political Rights?

MR BURNSIDE:   Yes, it is.  We have noted that in our written submissions.  It signed the Covenant in late 2001, just in time.

KIRBY J:   It signed the First Optional Protocol rendering it accountable to the Human Rights Committee?

MR BURNSIDE:   I believe not.

KIRBY J:   You will have seen that a reference is made in the respondent’s submission to the fact that your complaint that this is arbitrary detention is not sustained.  What is your answer to that?

MR BURNSIDE:   In our submission, what amounts to arbitrary detention is detention which does not have reference to the circumstances of the person detained; that is to say, detention which simply operates without reference to sickness or health, age, sex or any of the other considerations which might make detention more or less appropriate in particular cases.  In addition, if it is detention which does not have a definite terminal point and which is not referable to any offence committed, then, in our submission, that would constitute arbitrary detention.  It is probably not necessary to go any further than this, that it operates identically to infants as to adults.

KIRBY J:   But, your client not being an infant, can he take advantage of that point?

MR BURNSIDE:   Yes, because the question is whether the conditions on the visa are authorised by the Act and the regulations.  It is a single visa for all of the people on the list.  The same condition applies to all of them identically.  If the visa condition is not justified when imposed on a one‑year‑old or an eight‑year‑old or a ten‑year‑old, then it is invalid.  If it is invalid for any purpose, it is invalid for all purposes.

The only other matter I wanted to mention – and this is touched on briefly in our written outline – is that it is suggested by the respondent that the appellant here has acquiesced in his detention.  In our submission, that is factually incorrect.  It is not correct to say that he has chosen to stay.  There is not even any evidence to suggest that he knows that he is the subject of this condition.  All that is apparent is that he knows that he was locked up.

GLEESON CJ:   Does he know that he is the subject of these proceedings?

MR BURNSIDE:   He does.  He knows that he is the subject of these proceedings.

GLEESON CJ:   And does he know what they are about?

MR BURNSIDE:   I do not know, your Honour.  I just do not know.

KIRBY J:   Is that because of difficulty of access to him or ‑ ‑ ‑

MR BURNSIDE:   Yes.  I have not spoken to him myself.  I think none of us has spoken to him.

GLEESON CJ:   Presumably, he knows the possible consequences of a conclusion that he does not have a valid visa?

MR BURNSIDE:   He may constructively know that.  We have written instructions from him saying that he is not willingly there and he wants legal help.  What is clear from the evidence – and this appears at appeal book page 90 – is that without travel papers he cannot leave Nauru.  He does not have travel papers and the material indicates that whilst travel papers may be obtained through the offices of the Australian government, he does not have travel papers yet.  How long it will take to get travel papers is not identified in the material.  So it is simply wrong to say that he is there of his own current acquiescence.  He could not ‑ ‑ ‑

HAYNE J:   You said those travel papers were what, made through Australia?  Is that right?

MR BURNSIDE:   Australia, apparently, with assistance ‑ ‑ ‑

HAYNE J:   What I have in mind is page 90 in the last two lines, which suggests a rather different arrangement.

MR BURNSIDE:   I am so sorry, your Honour.  I have misremembered, it is the IOM and the Afghan Embassy.  I apologise.  I rather thought that there was somewhere else a reference to Australia helping in the process but it is of no moment.  The fact is that he cannot travel unless he has travel papers.  He cannot get travel papers for himself and we do not know how long it takes to get travel papers.

KIRBY J:   I thought there was something in the respondent’s submission that suggests that if he wished to do so and indicated his willingness to be returned to Afghanistan he can terminate his detention forthwith.

MR BURNSIDE:   Forthwith must be inaccurate because no doubt the process takes some time and we are not told how long.

KIRBY J:   Let it be, say, within a reasonable time.  What is the answer to that?

MR BURNSIDE:   The answer to that is even if it is true that he could abandon his claim to refugee status, even though it is still under reconsideration, that circumstance ‑ ‑ ‑

KIRBY J:   He has been taken to a country that is not a party to the Refugees Convention.

MR BURNSIDE:   That is true.

KIRBY J:   What is the legal status of that claim in that country?

MR BURNSIDE:   It has no legal status in Nauru, except for the ‑ ‑ ‑

KIRBY J:   There was that agreement in the Memorandum of Understanding, was there not?

MR BURNSIDE:   That is right.  Paragraph 24 on page 70 says that:

any asylum seekers awaiting determination of their status or those recognised as refugees, will not be returned by Nauru to a country in which they fear persecution nor before a place of resettlement is identified.

So it is contemplated that Nauru will not force him out of Nauru, if he has travel documents, to a place where he fears persecution.  They have, by the MOU, in effect, voluntarily undertaken one of the constraints that the Refugees Convention would impose on them.  But even if it were the fact that the appellant has acquiesced in his continued presence in Nauru when he could have gone back to Afghanistan, that circumstance would not give the Principal Immigration Officer power to impose the condition he imposed.

GLEESON CJ:   I presume there is no evidence about how it comes about that he has no travel documents.

MR BURNSIDE:   No.  Mr Wait might say something about – well, I think his evidence is fairly general and referable to the particular case.

HAYNE J:   Paragraph 6, page 90, is simply the fact of not producing travel documents.

MR BURNSIDE:   Yes.

HAYNE J:   Paragraph 7 speaks of the Australian government’s package, so‑called, and then refers to what IOM would do for him were he to agree to go to Afghanistan.

MR BURNSIDE:   Yes.  Yes, that is so.  In any event, whether he chose to take his chances and go back to Afghanistan and eventually got travel documents and was eventually returned to Afghanistan, that circumstance could not validate the condition which is the subject of the principal attack in this appeal.  Now, unless there are any aspects I can help ‑ ‑ ‑

KIRBY J:   There may be some inference to be drawn from the fact that he has elected to stay in this detention for a period of years rather than to take those chances, as you put it.

MR BURNSIDE:   Yes, and it is not too surprising when you consider the linguistic analysis that I mentioned earlier at pages 99 to 101, where it is quite plain that he is Hazara from Afghanistan.

KIRBY J:   Now, you said in the record on the transcript that Hazaras were an especially stigmatised group.  You may know that, but we have had cases of Hazaras but I am not sure that that is a matter that one could take judicial notice of.  Could one?  We had a case of a Hazara boy in the Court, but that was in another case.

MR BURNSIDE:   Yes, the Court sometimes takes notice of matters of history which are so well established as to be undeniable.  It is interesting to reflect on whether one would need evidence, for example, that Jews had been persecuted in Europe during the 1920s and 1930s.  Some matters become simply ‑ ‑ ‑

KIRBY J:   It has been the subject of litigation in England.

MR BURNSIDE:   That is true, the Irving Case, but that was not the question, I think.  The question was more specific.

KIRBY J:   What you have going for you is that he has preferred to stay in detention with loss of liberty rather than take his chances.  People do not normally do that unless they have a good reason.

MR BURNSIDE:   Yes, and to speak of “acquiescence” is probably to overstate the position.  Where fear holds you in one place, that is not to say that you are acquiescing in the conditions of indefinite detention in that place.  But it is true ‑ ‑ ‑

KIRBY J:   It is like acquiescence in poverty by sleeping under the bridges of Paris.

MR BURNSIDE:   Even so, I mean, I have to confront the fact that even from the day he arrived in Nauru it is theoretically possible that he could have said, “I will take my chances, refugee or not.  I will take my chances.”  The position of the second applicant in this case, who was an appellant in this Court until he received refugee status, is quite instructive.  He is also Hazara from Afghanistan.  He was ultimately recognised as a refugee after the habeas corpus application, but before this matter came here and that is why he withdrew as an appellant.

Now, the point could equally well have been made against him, that the habeas corpus application – in fact it was – “You could go back to Afghanistan.”  Well, of course he could, but he was a refugee and he has been now recognised as being a refugee and it is not a very compelling answer or, rather, not compelling support to the argument of acquiescence that you can go back even though you are a refugee and you can go back and face persecution, and that is not what the MOU contemplates.

But acquiescent or not, in our submission, does not give the Principal Immigration Officer power to impose what amounts to indefinite detention in the sovereign Republic of Nauru.

HAYNE J:   The provisions of the Migration Act to which I think you were referring earlier in the course of your argument are 46A which deals with these are applications by what are called offshore entry persons and perhaps those need also to be read in conjunction with 46B, these are applications by what are referred to as transitory persons of whom it may be that the applicant is one.

MR BURNSIDE:   Thank you for the reference, your Honour.  I was close but not close enough.

HAYNE J:   You said you would say something about it later.  I do not seek to delay.

MR BURNSIDE:   From recollection, transitory persons are offshore entry persons, that is people who were approaching the excised portion of the ‑ ‑ ‑

HAYNE J:   Those are offshore entry persons.  Transitory persons are those who during the period from 27 August 2001 to 6 October 2001 were transferred to HMAS Manoora from the ship…..or the ship MV Tampa.

MR BURNSIDE:   Yes.  There are other provisions also for people on Nauru to be brought into Australia for medical treatment, for example, and those people are also separately defined and are precluded from making visa applications, even though they are for the time being in Australia.

HAYNE J:   Yes.

KIRBY J:   Can I ask you again in relation to the decisions of the Supreme Court of Nauru, my experience in my service in the Solomons is that registries of courts quite often have collections of past decisions.  If we are sitting as we are, as the final court of Nauru, it would be a very discourteous

thing if we were to decide this case without reference to any decisions of the Supreme Court of Nauru that make reference to, for example, the importance of liberty, the constitutional provision in that respect, or jurisprudence of that court on that matter.  There may be none, but there may be some, and I think the parties should make inquiries so that we have any that are relevant placed before us.

MR BURNSIDE:   I will make those inquiries and if it is possible to go to Nauru and look at the ‑ ‑ ‑

KIRBY J:   Likewise, you might have a look at the Law Reports of the Commonwealth and at the Commonwealth Law Bulletin to see whether there are decisions of other Pacific States with similar provisions that we should take into account in interpreting the law of Nauru.

MR BURNSIDE:   Yes.

KIRBY J:   Not constitutional law as such, but the law of the migration, which is before us, within the context of the constitutional provisions.

MR BURNSIDE:   Yes, I will do that, your Honour.  The only thing I can say with confidence is we are unlikely to find a case which is on all fours with the facts in this case in other Pacific island nations, although Papua New Guinea, I think, may have some recent jurisprudence on the question, and I will check that.  If your Honours please.

GLEESON CJ:   Thank you, Mr Burnside.  Yes, Mr Hanks.

MR HANKS:   Your Honours, the visa which is at the core of this case is a permissive instrument; that is, it allows the holder of the visa to remain lawfully in Nauru on conditions.  To that extent, it conforms to section 9(1) of the Act.  Without a visa the appellant would be unlawfully in Nauru.  His presence there would be unlawful.

KIRBY J:   Even though you agreed that he be brought there.

MR HANKS:   Quite so, your Honour.  That agreement articulated in the Memorandum of Understanding must find its place within the framework of the laws of Nauru and it cannot ‑ ‑ ‑

KIRBY J:   I suppose you can say that the Executive Government has no power to override the law made by Parliament, and that if the Immigration Act provides a scheme then the Executive Government of Nauru making an arrangement with the government of Australia cannot override it.

MR HANKS:   We would say that, your Honour, and we say that it is then incumbent on the Executive Government, if it is to discharge that agreement, to do so consistently with the legislation of Nauru and in this case that legislation includes, obviously, the Immigration Act.  Your Honours have been taken to some of the relevant provisions but just to reinforce the point we would say that – one starts with section 8(2), as our friend did, the Immigration Act 1999, and subject to an exception which we will see has no operation here, subsection (3):

no person shall enter Nauru from overseas without a valid permit to do so.

The exception spelt out in subsection (3) had no operation here.  They apply to:

(a)      a Nauruan citizen; or
(b)      the holder of a Nauruan Official passport; or
(c)      a person or a member of a class of persons –

prescribed by the regulations.

KIRBY J:   It may ultimately not be relevant, for the reasons that were debated with Mr Burnside, but on one view this Act does not bite in this case if a person is, as it were, brought involuntarily to a country – that whole assumption.  It is a bit like the issue in Al‑Kateb.  The whole assumption of the Act is that it is dealing with people who “enter” in the sense of entering voluntarily, not just being brought here.

MR HANKS:   In our submission, your Honour, the language is neutral.  It does not incorporate some consciousness, some motive, some purpose.  It refers to the physical act of entering.  If I could take your Honour to the definition section, which is section 2, the word “enter” is defined.  That appears on page 2 of the print.

“enter”, in relation to Nauru, means –

and we would think from what has been said so far that paragraph (a) must be the relevant paragraph:

(a)      in the case of a person arriving by sea –

Then, I think, it will be subparagraph (ii).  Well, it may be subparagraph (i), but in either case it is plain from the definition if it were the case that the appellant entered through “a restricted area”, then entry into Nauru would simply involve leaving that restricted area to enter Nauru.

KIRBY J:   But, on one argument, it is a bit like the issue in Al-Kateb.  He did not leave the restricted area to enter Nauru in the sense used in this Act.  He was taken under custody to a place of detention by the officers of the government of Nauru.

MR HANKS:All your Honour has is the terms of the Memorandum of Understanding and the findings made by the judge below.  We do not have that fine detail that your Honour has referred to.  What we know is that he arrived by sea in Nauru and, in our submission, taking into account the definition of “enter”, once he set foot on the territory of Nauru, he thereby entered Nauru, whether he was a conscious and willing actor or whether he was carried there. 

GLEESON CJ:   Is that a convenient time?

MR HANKS:Yes, your Honour.

GLEESON CJ:   We will adjourn until 2.15 pm.

MR HANKS:If your Honour pleases.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ:   Yes, Mr Hanks.

MR HANKS:   Thank you, your Honours.  I had taken the Court briefly to section 8(2), which prohibits, one should say, a person from entering Nauru “without a valid permit to do so”, and I had taken your Honours to the definition of “enter”, and should perhaps remind your Honours that “permit” is defined also in the same section (2) of this Act, to include a visa.

Your Honours, our friends took the Court to subsection (6) but, in our submission, that only applies in relation to a prosecution for an offence against this section, and the only offence created by section 8 is the offence created by subsection (9).  It does not affect the prohibition in subsection (2); the prohibition remains.  Our friends took the Court also to section 10(1)(a) which creates, as it were, a category of prohibited immigrants, including a person who is not entitled to enter Nauru without a permit under section 8(2), such as the present appellant and “is not the holder of a valid permit granted under this Act”.  So our fundamental point is that without the ‑ ‑ ‑

KIRBY J:   It does seem a bit bizarre that you are complaining about his entry, when he was brought there with agreement with you.

MR HANKS:   No complaint is made, your Honour.  I am simply pointing out the consequences of the way in which the legislation works and why it is that the visa or permit is an essential permission to render the presence of the appellant in Nauru other than unlawful.

GLEESON CJ:   In the early days of European settlement in this country, we had some experience of involuntary immigration.  What might be the various circumstances in which a person – apart from being swept in by the tide or the sea – would, as it were, be an involuntary immigrant?

MR HANKS:   I will give you two examples, if I might, your Honour, dealt with, I believe, in litigation in this Court.  One example would be a stowaway found on board a ship and brought ashore on an arriving vessel.  That person would arrive, on might say, ashore in Australia or in any other country involuntarily and yet that person, we would say, would plainly enter Australia, would be subject to the Migration Act and to any penalties that might attach for unlawful entry into the country.

KIRBY J:   It is hardly analogous.  I mean, Kafka would write a wonderful novel about this.  You pick up people on the high seas, they are brought here by the Royal Australian Navy, then you bring them into your country and you complain that they have breached your immigration law.  It is unprecedented.

MR HANKS:   We accept them, your Honour.  My client, as your Honour knows, is the Director of Police, charged with the responsibility of administering the terms of the visa.  We represent him, and, indirectly through him, the Republic. 

KIRBY J:   It is the Republic that made the agreement with the Commonwealth of Australia pursuant to which people are brought to Nauru, and then you complain that they are illegal immigrants.

MR HANKS:   Nevertheless, your Honour, they are subject to the Act.  They cannot operate in a zone of immunity.

KIRBY J:   Well, it is a reason to look at the Act and the regulations with great scrutiny, close attention, close scrutiny.  Scrutiny with a view to liberty.

MR HANKS:   Well, your Honour, our position – if I can just go back to a question your Honour asked me – we do not complain about their unlawful presence in Nauru.  We say their presence is lawful.  It is lawful because they hold a valid visa and for that reason they are permitted  ‑ ‑ ‑

KIRBY J:   Well, that is the question. 

MR HANKS:   They are permitted to remain with Nauru so long as they conform to the terms of the visa.  That is our position.  And we do say that without the visa their presence would be unlawful.  They would have no right to be in Nauru.  They could not be – if one might use the language that has been used this morning – at liberty in Nauru because their presence would be unlawful.  They would be prohibited immigrants.

KIRBY J:   Well, that is the issue that we are here to consider.

MR HANKS:   It is, indeed, your Honour.

KIRBY J:   One would not, would on, struggle to interpret the Act or the regulations in a way that is diminishing of the liberty of these people, who have, after all, been brought to Nauru by an agreement between others.

MR HANKS:   Yes.

KIRBY J:   And the consequence of which is that they have been locked up for years. 

MR HANKS:   Well, your Honour, we would strongly resist that characterisation of their treatment.

KIRBY J:   Well, you can resist it as much as you like, but that is what it looks like to me.

MR HANKS:   I appreciate that, your Honour, but we think that that is, with respect  ‑ ‑ ‑

KIRBY J:   It is a bit unkind, is it?

MR HANKS:   No.  With respect, it is wrong, your Honour.  That perception is not accurate.

KIRBY J:   Well, it looks accurate so far as I can see, but I will listen to your arguments.

MR HANKS:   Thank you, your Honour.  I have no doubt that your Honour will.  It goes back to our basic point.  This visa is permissive and not restrictive.  What it does is to lift what would otherwise be a prohibition on the presence of the appellant in Nauru and it does that by providing, as it were, an escape from section 8(2), which would prohibit the appellant’s entry.  It provides an escape from section 10(1)(a), which would render him a prohibited immigrant, because he is the holder of a valid permit.

It provides an escape from the possibility of being prosecuted under section 13(1)(l) as a person who is unlawfully in Nauru and in that context I would remind your Honours that it is pursuant to section 10(2) that the appellant would be unlawfully present in Nauru as a prohibited immigrant.  Various consequences would follow from that characterisation and I need to take the Court to those consequences very briefly.

Our learned friend has taken the Court to section 13 which provides a criminal offence punishable by a fine or imprisonment for a year or both. Section 13(1)(l), our friend has suggested that a prosecution might not be brought, discretion might be exercised against prosecution. Nevertheless, that is a consequence that would attach if the appellant did not hold a valid visa. In addition, there is power in section 5 – I think your Honours have not been taken to this provision directly. Section 5(2)(b) which gives the immigration officer, or should I say an immigration officer – not necessarily the principal officer – power without warrant to arrest a person where the officer has reasonable cause to suspect:

that the presence of a person in Nauru is or would be unlawful -

So there is a power of arrest without warrant.  There is the power of prosecution and there is, as our friends indicated, a power in section 11(1), a power to “make a removal order” which would direct the appellant to leave or be removed from Nauru.

Your Honours will see that there is some detail relating to that dealt with in section 11(6).  For example – and this invited, or prompted, some speculation within the Court this morning – the person could be removed to “the place from which he came”.  Alternatively:

with the approval of the Minister – to a place in the country to which he belongs, or to any place to which he consents to be removed –

and then there is a proviso –

provided that the Government of the last-mentioned place consents to receive him.

Those are all consequences that could follow, and as far as the Act is concerned those are consequences that do follow.  He is liable to be prosecuted, he is liable to be removed, he is liable to be arrested without warrant if he does not hold a valid visa.

GLEESON CJ:   There is no information before us I take it, Mr Hanks, about the applications, if any, made to the Australian government by the appellant and others, the subject of this visa, except that we know from an affidavit that they have made an application which we would infer was for a protection visa and that that is being processed, dealt with in some way.

MR HANKS:   That is right, your Honour.

GLEESON CJ:   We do not know how the appellant comes to have no travel papers?

MR HANKS:   No, we do not.  We do not.  We know ‑ ‑ ‑

GLEESON CJ:   We do not know in what circumstances, when, where and to whom he made his application, do we, for a protection visa?

MR HANKS:   No, we have no direct evidence on that, your Honour.  What we do have are the two affidavits of Mr Long that are relevant to this point.  The first of those affidavits I believe commences at page 104 in the appeal book, and your Honour will see, as Justice Hayne I think pointed out this morning, in paragraph 2, that the appellant, who would be the third applicant in this affidavit:

arrived in Nauru in December 2001.  [He was] processed by DIMIA case officers to determine whether –

here, of course, the affidavit is speaking of two applicants who were then currently before the Supreme Court of Nauru –

to determine whether [he] might be in need of protection under the United Nations Refugees Convention 1951 as amended by the Refugees protocol.  That assessment found that [he was] not in need of protection and this decision was handed to [him] in 2002.

One has that affidavit.  Then there is a reference to he and the other applicant availing themselves of the right:

to seek a review of that decision.  The original decision was affirmed some time later.

Then, in paragraph 3, there is a reference to a re‑examination by DIMIA, the Commonwealth department, of Afghan cases on Nauru, including the cases of those two applicants that were before the Supreme Court.  We have the resolution of that revisiting of their cases dealt with in the third affidavit of Mr Long, which was sworn shortly before the publication of the judgment of the court below, but after the judgment of the court below was signed off.  That affidavit is at pages 119 to 120.

GLEESON CJ:   But do we know from the evidence whether their refugee status is being processed, as it were, in the abstract or by way of dealing with some application that they have made, but, specifically, that the appellant has made?

MR HANKS:   No, we do not.  We only are told that their cases were considered by departmental officers to determine whether their position conformed to the Convention and the Protocol.

GLEESON CJ:   But we do not know, for example, whether the appellant has applied to the Australian government for a protection visa. 

MR HANKS:   I have to agree with your Honour that we do not know.  My learned friend says they would not be allowed.  I am not going down that path.  We simply do not know what has happened.

GLEESON CJ:   What I have in mind is this.  Put to one side this special legislation about islands being excised from the migration zone and that sort of thing.  Is there anything to stop a person who is presently in Romania making an application to Australia for a protection visa?

MR HANKS:   Your Honour, I am not able to answer that.  Essentially, as your Honour will understand, I am representing the respondent in this appeal ‑ ‑ ‑

GLEESON CJ:   I only asked the question for this reason.  We know that boat people come from Romania to Italy from time to time.  Suppose a Romanian boat person landed in Italy and managed to make contact with some Australian official and said, “I am a refugee.  I am a gypsy.  I am being persecuted and I want Australia to grant me a protection visa”, and there was then an agreement between the Australian government and the Italian government under which the Italian government said to the Australian government, “We will allow you to make arrangements to process that application in Italy” – assume there are 100 of these people – “but that is going to be on condition that we control their movement while they are in Italy.  Those are the terms on which we will allow Australia to set up a facility for processing applications from such people in Italy”.  Is that possible?

MR HANKS:   I understand your Honour’s question.  That will depend on consideration of the Act and the regulations, which are, one would have to say, complex.

HAYNE J: Does it not depend upon, particularly, the interaction of sections 46, 46A, 46B, and 47 of the Migration Act, which, to my untutored mind, seemed to suggest that, subject to the application of the provisions of 46A concerning visa applications by offshore entry persons and 46B, the qualifications concerning applications by so‑called “transitory persons”, then, so long as it is your first application for a visa, whether or not you are outside Australia, your application is valid and then 47 is engaged, requiring the Minister to consider that application as a valid application.  Now, that is the untutored approach to it.  What tutoring do you wish to offer me, Mr Hanks?

MR HANKS:   The following, your Honour, that my client, the Director of Police for the Republic of Nauru, is involved in the execution of an arrangement that has been entered into between the Republic and the Commonwealth of Australia.

GUMMOW J:   You say this is all foreign law to him.

MR HANKS:   It is foreign law to him, but I want to make a positive answer, your Honour, not a completely evasive answer.

HAYNE J:   Just partly evasive.

MR HANKS:   No, with respect, your Honour, it is relevant, and that arrangement is plainly, on its face, as in the Memorandum of Understanding, one that provides an opportunity for the assessment of claims for refugee status, including their assessment on behalf of Australia. The evidence that is before the Court in the form of the affidavits of Mr Long makes it clear that there has been such assessment and that assessment has taken place within a framework set by the Memorandum of Understanding.  It has taken place in relation to people who are on the Republic of Nauru pursuant to the terms of the visa.  These are issued in order to make effective the terms of the arrangement.

If I might now come to Justice Hayne’s question, precisely how Australia justifies, according to its law, the acceptance of a claim for refugee status is not a matter that bears, with respect, on the validity of the visa.

GLEESON CJ:   The Republic of Nauru seems to be saying to Australia, “We will allow you to bring these people to Nauru and to establish a facility here for processing their application to Australia for a visa, but we are going to be in control of them while they are here and the way we exercise that control is by the granting to them of visas on terms and conditions”.

MR HANKS:   Yes.  In other words, one might say that there is no thought that any part of the island would be extraterritorial under the agreement between Australia and Nauru.  The part of the island to which they will be admitted remains part of the Republic and they remain subject to the law of Nauru, including the Immigration Act.  For that reason, they have to be issued with these visas and the conditions that are attached to the visas limit, define, that part of Nauru to which they are given access.  Or, to put it another way, we would say the visa and the conditions on the visa define with some precision that part of Nauru in which they are to have liberty according to Nauruan law.

KIRBY J:   They do not have any liberty, do they?

MR HANKS:   They do.

KIRBY J:   They are locked up.

MR HANKS:   They are not locked up, your Honour.  They are required to stay within the facility.

KIRBY J:   It sounds like locked up.  I wish we would not use this double language.  It is locked up.  It is like “management”.  They are locked up.  They are behind – they can only leave when they are given permission and then in custody.

MR HANKS:   With respect, your Honour, that is wrong.  It is not the case that they can only leave when given permission.  They are perfectly free to depart from the Republic.  There is nothing that the Republic ‑ ‑ ‑

KIRBY J:   Abandoning their entitlement to claim refugee status.

MR HANKS:   Why should that be, your Honour?

KIRBY J:   Well, that is what they are obliged to do.  They are obliged to abandon it in order to gain their liberty.  What a price.

MR HANKS:   In the case of the present appellant, your Honour, as the materials show, his case has been considered on at least three occasions, and on each occasion the decision has been made that he is not entitled to claim protection.  That is clear.

KIRBY J:   Protection where?

MR HANKS:   That decision has been made by Australia.

KIRBY J:   That itself is very odd.

MR HANKS:   With respect, your Honour, that is entirely consistent with the Memorandum of Understanding.

KIRBY J:   Exactly.

MR HANKS:   If I might go back to the point, your Honour, he and others who are currently on Nauru are not subject to any restraint applied by Nauru which would prevent them leaving the Republic.  They are as free to depart as any other person.

GUMMOW J:   They have to get travel documents.

MR HANKS:   Yes, indeed.  The evidence is that they do not have travel documents and the evidence also is that they have made no attempt to obtain travel documents.  And the third point, if I might make it, your Honour – it is in Mr Winter’s affidavit – is that a large number of people who arrive without travel documents have gone down the path of obtaining them with the assistance of the International Office of Migration and, having obtained them, have returned to their countries of origin.

GUMMOW J:   It would appear from page 120 which you took us to that the third stage, the stage of re‑examination, has been unsuccessful.

MR HANKS:   Yes.

GUMMOW J:   How does that then square with condition 5 of the visa which is at page 13, namely “Completion of humanitarian endeavors”?  It looks like they are finished.

MR HANKS:   No, only if your Honour proceeds on the assumption that humanitarian endeavours are confined to determining whether the asylum seekers qualify for refugee status, but that goes well beyond that.  There are other possibilities that can actively be pursued.  They include, for example, arranging for voluntary return to the country of origin, and that is a humanitarian endeavour.  They may also include arranging for departure from Nauru to another country of origin if that other country is willing to accept a person who is, for example, not technically a refugee.  So we would think, your Honour, that a broad phrase has been chosen in the Memorandum of Understanding in order to encompass a wide range of activities on behalf of the asylum seekers.  If I might come to Justice Kirby’s reference to “management”, I draw your Honour’s attention to the proposition in the Memorandum of Understanding.

GUMMOW J:   What page?

MR HANKS:   I think it is on page 13.

GUMMOW J:   No, that is the visa.

MR HANKS:   I am sorry.  That is why I could not find the phrase I was looking for.

KIRBY J:   Which page?

MR HANKS:   It is 68, your Honour, and it is clause 1:

The Parties have mutually decided to cooperate on the management of asylum seekers on Nauru, in accordance with the constitutions and relevant domestic laws of each country, international law, as well as acting within their respective framework of powers and responsibilities.

So there is a clear acknowledgement that the management of these people is not being used in a pejorative Orwellian sense but is to be consistent with ‑ ‑ ‑

KIRBY J:   That is like processing them, as we see that others are processed in other times.

MR HANKS:   Consistent with the requirements of the Constitution of Australia and the Constitution of Nauru, the laws of both countries and international law, your Honour.  It is a very different activity from that which your Honour had in mind.

KIRBY J:   This present appellant appears to be willing to pay with his liberty over more than two years.

MR HANKS:   With respect, your Honour, that is the appellant’s choice.  He chooses.  For him ‑ ‑ ‑

KIRBY J:   People do not lightly choose to be locked up for more than two years.

MR HANKS:   It is more congenial for him to remain in Nauru than to pursue other options, other options which, according to the evidence of Mr Winter, have been made available and have been exploited, used by a large number of people who were in a similar situation to the appellant.

KIRBY J:   What, to go to New Zealand?

MR HANKS:   No, many options including return to their countries of origin.  As your Honour will have read, in excess of ‑ ‑ ‑

KIRBY J:   Can we take into account what Mr Burnside said to us about the Hazaras?

MR HANKS:   No.

KIRBY J:   Why not?

MR HANKS:   It is an interesting exposition from the Bar table, your Honour, but it is not evidence and, with respect ‑ ‑ ‑

KIRBY J:   Why is it not a matter of public knowledge or readily ascertainable public knowledge that there is a minority in Afghanistan?

MR HANKS:   The position in Afghanistan, I would suggest, your Honour, is far more complex than could be summed up in that brief description.  The question whether this particular person has no option but to return to an area of the country where he would be unsafe is a matter that would require intensive investigation and evidence and cannot be accepted simply on an assertion made from the Bar table.  That is why.  It is much more complex than that.

KIRBY J:   It is apparently clear in the mind of this appellant.

MR HANKS:   Maybe it is, your Honour, and maybe it is not.  He has not provided any insight into his mind, none at all.

KIRBY J:   He has provided it by the price he is willing to pay with his liberty over more than two years.  People do not lightly make those decisions, Mr Hanks.

MR HANKS:   Our submission, your Honour, is that he has made a choice and he has decided that he prefers to stay where he is rather than attempt to return to his country of origin.  There could be many reasons for that.

KIRBY J:   That is quite a typical pattern for people who have a well‑founded fear of persecution.

MR HANKS:   But there may be other reasons, your Honour, and we cannot speculate as to why he has chosen that course.  The fact is, he has chosen the course.  And I make this point because I say  ‑ ‑ ‑

KIRBY J:   He did not choose to be in Nauru.

MR HANKS:   Well, I say he has chosen not to leave, that is what I say.  I only make the point because we are resisting the characterisation of the terms of the visa as involving imprisonment or detention against his will.

KIRBY J:   The primary judge found it was detention.

MR HANKS:   But the primary judge also found that the appellant did have the option of departing.  And his Honour referred to those observations of Justice McHugh in Chu Kheng Lim.  I think it is at page 72 of the report in that case where his Honour said ‑ ‑ ‑

KIRBY J:   Was Justice McHugh dissenting in that case?  His Honour does not like that case very much.

MR HANKS:   I do not think he is, your Honour, but it is just a simple proposition that although the choice might be unpalatable, the reality was that the individual had a choice to depart from Australia.  He might prefer not to go back to his country of origin, but nothing that Australia was doing was restraining him from doing that.

KIRBY J:   Every person who has ever made an application for refugee status in Australia has that right, but we do not normally say, “Well, it is your choice to stay here”.

MR HANKS:   No.  Well, in many circumstances we do, your Honour, and this is one circumstance, I would suggest, in which we would make that rejoinder.  It is at page 72, your Honour, at about point 3 on the page where Justice McHugh referred to that.

KIRBY J:   According to the headnote, Justice McHugh dissented on some matters, but I am not sure whether it was on this matter.

MR HANKS:   Yes.

KIRBY J:   What page?  72?

MR HANKS:   Yes.  I think he dissented on the 54R point, your Honour.  I had in mind what his Honour said at about point 3 on the page where his Honour made the point:

That a designated person may release himself or herself from the custody imposed by those sections.

And then through the balance of the paragraph his Honour said:

It is true that a designated person, having regard to his or her claim for refugee status, might regard the choice between detention and leaving the country as not a real choice.  But for the purpose of the doctrine of the separation of powers, the difference  ‑ ‑ ‑

GUMMOW J:   The difficulty with that passage is that it ignores the possibility of stateless persons.

MR HANKS:   Of course, it does not, your Honour, and I fully accept what your Honour said in Al-Kateb about stateless persons, but we are not dealing with a stateless ‑ ‑ ‑

GUMMOW J:   I realise that.

MR HANKS:   Yes.  We are dealing with a person who has a choice, and that is essentially what Justice McHugh was saying in Lim.  There is a choice.  It might be unpalatable, but it is a real choice.  To develop the point a little further, I think one might say, again, nothing that the Republic, or, indeed, my client, the Director of Police, has done in any way is taking away that choice.  There may be circumstances which make the choice unpalatable, but those are circumstances for which the Republic and the Director are not responsible.

Now, it is for that reason we say the terms of the visa do not detain the appellant, if one takes into account the conditions.  What they do is they define that part of Nauru where he may lawfully be, despite ‑ ‑ ‑

KIRBY J:   Behind gates.

MR HANKS:   They define that part.  There is a fence – the evidence your Honour has just read  ‑ ‑ ‑

KIRBY J:   It just seems so artificial and false to say he is not being detained.  I mean, really, we have to come to grips with reality every now and again in this Court.

MR HANKS:   Well, I think this is, with respect, your Honour.  This is a very substantial piece of reality.  The reality is that in the absence of the visa his presence would be unlawful.  The visa allows him to be in Nauru lawfully.  It allows him to do that so long as he conforms to the terms of the visa.  What the visa does is to define that part of Nauru where he may be.  And he is always open to ‑ ‑ ‑

KIRBY J:   He just happens to be behind gates, unable to move about freely, unable to go down to the beach, unable to have access to the ordinary freedoms of human beings, and that under the control of officers of a foreign country, who, by arrangement with the government of Nauru, are there to provide protective services.

MR HANKS:   Your Honours, with respect, there is a degree of inaccuracy in that description.  As we understand, the administration of the facility is a matter for the International Organisation for Migration.  The International Organisation for Migration has arranged with subcontractors to provide a degree of security at the ‑ ‑ ‑

KIRBY J:   Who is this organisation?  I thought I knew most international organisations.  I have never heard of them.  Sounds like a private sector organisation that jumped up to be very profitably available for this enterprise.

MR HANKS:   I am surprised that your Honour would say that, though I am not representing the IOM and I am not ‑ ‑ ‑

KIRBY J:   Well, can you tell me where I find out who they are, according to the record?

MR HANKS:   Well, the only evidence that your Honour has is the affidavit of Mr Winter, who is the chief of mission.  Your Honour will see that his affidavit, which commences on page 52 says that:

The IOM is an independent international organization staffed by international civil servants.  The IOM was requested by the Governments of Australia and Nauru to provide specific services –

and there is exhibited at pages 56 and 57 ‑ ‑ ‑

KIRBY J:   How can they be international civil servants unless they are civil servants employed by an agency of the United Nations?  This is certainly not that.

MR HANKS:   Your Honour, might I ‑ ‑ ‑

KIRBY J:   Are they some offshoot of the Office of the High Commissioner for Refugees?

MR HANKS:   I cannot answer that, your Honour.  I do not know anything ‑ ‑ ‑

KIRBY J:   Well, I have never heard of them.

MR HANKS:   Their hierarchical structure ‑ ‑ ‑

KIRBY J:   And I know quite a bit about that office.

MR HANKS:   But, your Honour, my point is that they are responsible for the management of the facilities.  They employ subcontractors who are responsible for external security.

KIRBY J:   They are like Australian Protective Services in Australia, are they?

MR HANKS:   They are not, your Honour.  The Australian Protective Service has other functions on Nauru.  They assist the police of Nauru, but they are not directly responsible for controlling entrance to and egress from the open gates of the facilities.  All of that is covered in the affidavit material, and it is dealt with in the judgment below.

GLEESON CJ:   What is the reference on pages 52 and 53 to registering with the IOM?

MR HANKS:   Your Honour, we think this is the explanation of the lists which are attached to each of the visas that Mr Winter deposes to IOM having prepared lists of residents’ names in paragraph 3 of that affidavit on page 52:

sent them to the Principal Immigration Officer for him to consider the issuance of special purpose visas for the migrants.

We would understand that the lists, for example, attached to the first visa – and that list commences on page 31 – is the list referred to in Mr Winter’s affidavit.

Your Honour has asked questions not only about that list, but I think more relevantly about the list that commences on page 14, which is the list attached to the visa that was current at the time that the order nisi was returned.  Your Honour has asked questions about the acronyms “PA”, “MC”, et cetera.  We understand that, although we are not able to give a complete translation, “PA” means principal applicant.  We think that “SO” means son, but other than that, your Honour, we are not able to give a complete – “DA” is also another acronym that is used, and that appears to mean daughter, but there are some acronyms that defy ready translation.

If I could just draw Justice Kirby’s attention to a particular website that might assist your Honour.  The International Organisation for Migration does have a website:  J:   I would not want to be peeping into something that is not in the record.

MR HANKS:   I thought your Honour was asking a question.

KIRBY J:   Murder convictions have been set aside for less, you know.

MR HANKS:   Yes, indeed.  I am not suggesting it was a relevant factor in this appeal, your Honour, because, as I understand it, no attack was made on the arrangements that had been made by reason of the status of IOM but your Honour asked a question.  My instructions are that it has a long history quite unrelated to these events and that it has some link to the United Nations.

HEYDON J:   Page 59 reveals a promise that counselling in relation to processing arrangements and return will be done with the appropriate co‑operation or consultation with the United Nations High Commissioner for Refugees.

MR HANKS:   As our friend indicated this morning, at least in the early stages of assessment, after the arrival of the asylum seekers in Nauru, there was, as it were, multi-agency involvement in that processing, the UNHCR, the IOM and the Commonwealth Department of Immigration.

GLEESON CJ:   It sounds as though the IOM is an NGO.

MR HANKS:   Yes, another acronym.

KIRBY J:   That does not necessarily make them less worthy of respect.

MR HANKS:   No, your Honour.

GLEESON CJ:   No, as long as they are not part of the spectre of private enterprise.

MR HANKS:   Not necessarily pejorative.  There is a critical structure in the law of Nauru that lies behind the grant of these visas, and I have taken your Honours to it, to support our proposition that in the absence of the visa, presence in Nauru would be unlawful.  What the visa does is to grant defined permission.  That essentially raises – I wish to deal with this very quickly – the notice of contention which we filed.  It is a point that we only get to, of course, if we cannot properly defend the terms of the visa but the notice of contention, essentially, is that neither the respondent, that is the Director of Police, nor any other officer of the Republic of Nauru, took any action that deprived the appellant, now singular although at the time the notice was filed there were two appellants, of any liberty that they otherwise had. 

KIRBY J:   They are getting off the Royal Australian naval vessel, they are on the dock there and somebody takes them into their possession and takes them up to Topside.  They are marched up there and then they are put behind a gate.  They cannot go to the beach or wander around and you say you are not responsible for their loss of liberty.

MR HANKS:   They had no liberty, your Honour, no liberty at all.  They were not entitled, they had no lawful authority to be on Nauru.  Their presence on Nauru ‑ ‑ ‑

KIRBY J:   They did not want to be in Nauru but you agreed with another government to bring them there.

MR HANKS:   I appreciate what your Honour says but, with respect, the ‑ ‑ ‑

KIRBY J:   I do not think we are going to reach resolution on this point, between you and me, Mr Hanks.  You are taking a very fine point.  It appears to have no basis in reality.  It is like saying that detention in Australia is not a deprivation of liberty.  Migration detention is a deprivation of liberty and this detention is equally a deprivation of liberty.

MR HANKS:   With respect, your Honour, we are not dealing with Australia.  We are dealing with Nauru ‑ ‑ ‑

KIRBY J:   I am just drawing an analogy to earlier decisions of this Court.

MR HANKS:   The analogy may not hold, your Honour.

KIRBY J:   We will just have to agree to differ on that.

MR HANKS:   I have taken your Honours to the provisions of the Act which would make the presence of a person who does not hold a visa, in Nauru, unlawful which would render that person a prohibited immigrant with all the legal consequences that flow from that.  It is for that reason that we say that what the government of Nauru has done, consistent with its right as a sovereign state, either to exclude or to admit on such conditions as the sovereign state chooses, an alien, the government of Nauru has decided to admit on condition that those who are admitted stay within a defined locality.

HAYNE J:   Does not this raise a spectre of some ungoverned executive power being exercised?  Does not that, in turn, raise the spectre of a constitutional question?  Does not that run you headlong into the wall of the limits on this Court’s jurisdiction?

MR HANKS:   It does, indeed, your Honour.

HAYNE J:   Where are we going with the notice of contention?

MR HANKS:   We are going this far, your Honour.  It is a simple point, I think.  I trust it is.  If your Honour will just allow me to develop perhaps three propositions.  These asylum seekers – let us call them that – the appellant, in particular, because it is with his case and only his case that we are concerned.  The appellant, on arriving in Nauru without a visa, had no right to be at large.  The government has permitted the appellant to enter Nauru on condition that he stay within a particular place.  It is, of course, open to the appellant to depart.  There is no constraint on his departing.  When those factors are taken into account, it would be, we would submit, an inappropriate remedy to issue habeas corpus, which would grant the appellant liberty within Nauru, when, according to the law of Nauru, he has no such right.  That is essentially the point that is made by the notice of contention.

If I might then return to our major argument, your Honours.  Our first point is that the visa granted to the appellant on 28 January 2004, which can be found at appeal book 13, was one that could be granted without any application.  There was, according to section 9(1), no requirement for an application.  The power of the Principal Immigration Officer is expressed in broad terms, and whatever the regulations might say about an application – and I will come to that shortly – the regulations do not, indeed, cannot, cut down the amplitude of the power of the Principal Immigration Officer.

KIRBY J:   You draw some strength for that argument, apparently, by reference to an Australian provision that contrasts with section 9(1).  What is that provision and what does it say?

MR HANKS:   Someone will remind me in a moment, your Honour.

KIRBY J:   It does seem, on the face of things, that 9(1) is a very broad granted power.

MR HANKS:   Yes.  Section 47, particularly subsection (3).  But, section 49(1):

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

It is on page 52 of my reprint.

(3)      To avoid doubt, the Minister is not to consider an application that is not a valid application.

KIRBY J:   So, it is very much bound up in the application?

MR HANKS:   Yes.  In our submission, there is a freestanding power given to the Principal Immigration Officer to grant a visa.  If it be the proper construction of, let us say ‑ ‑ ‑

GUMMOW J:   I do not know.  Section 29, I thought, was the starting point of the Australian Act.

MR HANKS:   The caravan has moved on almost, your Honour.  I think your Honour is saying, if I heard your Honour correctly, that there is a general power to grant a visa in section 29.

GUMMOW J:   Yes.

MR HANKS:   But that is subject to this Act, and it was our submission that section 47 constrained the exercise of that power.

KIRBY J:   Well, 9 is subject to 9(2) ‑ ‑ ‑

MR HANKS:   If I might just delay your Honour, I was dealing with ‑ ‑ ‑

KIRBY J:   I will try to hold my anticipation.

MR HANKS:   There is a risk that we might mix up the Acts.

GUMMOW J:   I think it is 45, “who wants a visa”.

MR HANKS:   Yes, “must apply”.  Mandatory perhaps.

GLEESON CJ:   Mr Hanks, put to one side the possible international implications of a breach by the Republic of Nauru of the terms of the Memorandum of Understanding with the Australian government.  There would have been nothing, I suppose, to stop the Republic of Nauru from just changing its mind when these people were just standing on the dock.  The Republic of Nauru did not bring these people to Nauru; it permitted the Australian government to transport them and unload them.

MR HANKS:   Yes.

GLEESON CJ:   If the Nauruan government had changed its mind as these people were on the dock, presumably, what it could have done under the Immigration Act would have been to charge them all with being unlawful entrants or remaining unlawfully, with a penalty of imprisonment.

MR HANKS:   That would be our submission, your Honour, in the sense that the appellant and his cohort could not have resisted that action on the basis that the Memorandum of Understanding implicitly provided otherwise.

GLEESON CJ:   From one point of view, the issue in the case is whether, instead of dealing with these people who had been brought by Australia to Nauru in that fashion, the Immigration Act of Nauru authorised or empowered the Principal Immigration Officer to grant them a visa, even though they did not apply for one, and impose the particular conditions in question.  That is the question of construction of the Nauru legislation, is it not?

MR HANKS:   It is, your Honour, yes.  That is the core of the appellant’s case, essentially, that the Immigration Act demands, as a precondition to the grant of a valid visa, that there be an application made by the person to whom the visa is to be granted.

GLEESON CJ:   Suppose, instead of a lot of asylum seekers, you had a stowaway on a ship – to take the example you gave earlier – and the stowaway is apprehended as he leaves the vessel and is on the dock.  Obviously, under the Immigration Act he could be charged with an offence and potentially imprisoned.

MR HANKS:   Yes.

GLEESON CJ:   Would it be within the power of the Principal Immigration Officer of his own motion to deal with the stowaway by granting him a visa on a condition of the kind that we have here?

MR HANKS:   My first response to that, your Honour, is that the only category of visa which could possibly be relevant would be a special purpose visa, although perhaps a transit visa might be possible.

GLEESON CJ:   You mean there would have to be some purpose in doing what was done.

MR HANKS:   Yes, there would have to be, yes, and there was a purpose here, with respect.  It plainly fits within the categories of special purpose visa that can be granted; the visa that was granted to the appellant.

GLEESON CJ:   Well, suppose the purpose with the stowaway was that they wanted to prosecute him.  It was going to take a significant time for his case to come on for hearing, and in the meantime, without taking him into custody, denying him bail, they wanted him to be the subject of some restriction as to his movements on the island.  Could they use the visa granting power for that purpose?  In other words, could they say to the stowaway, “The Nauruan gaols are full.  We have got no intention of accommodating you at the expense of the Nauruan government.  It’s going to take us six months to bring you on for trial.  You can go any time you wish, but in the meantime we’re issuing you with a visa which says that you can only move about the island during daylight hours”, or whatever the case may be.

MR HANKS:   The categories of visa that may be issued are, we apprehend, fixed by the regulations and there can be no category of visa other than those that are fixed by the regulations.  That seems to be the import of section 9(2) of the Act.  It is not apparent to us that there would be a category that would cover that situation.  Might I say that almost certainly that would be dealt with by attaching conditions to the grant of bail.  All the matters that your Honour has dealt with could be amply addressed in the conditions of bail, and that will be the solution.

Now, your Honours understand that our first submission is that pursuant to section 9(1) an application is not essential, and we submit that there is nothing in the regulations, properly read, which even purports to limit the powers of the Principal Immigration Officer in section 9(1).

GLEESON CJ:   Is there anything in international practice that deals with the granting of visas in invitum, as it were?

MR HANKS:   I am unable to help your Honour on that point.  I am not aware of what the international practice is in this area.  To the extent that regulation 13 refers – or says:

(1)      An application for a visa shall be made in writing –

it, in our submission, deals only with the form of an application where an application is made.  It does not mandate such an application as a condition to the consideration and grant of a visa.

GUMMOW J:   Yes, that must be right because take the emergency entry visa.

MR HANKS:   Yes.

GUMMOW J:   That could be a medical ground.   The person could be unconscious.

MR HANKS:   Yes, that is right, your Honour, with respect.  Plainly the regulations do contemplate the granting of a visa in circumstances where there is no application and where the person is incapable of authorising another person to make an application on his or her behalf.

GUMMOW J:   Yes.

MR HANKS:   And that allows us to avoid the argument which we would make, of course, that if the regulation did purport to confine the power of the Principal Immigration Officer under section 9(1), the regulation would be bad.  That is an attempt to cut down the operation of the statute would necessarily have to give way to the statute.  Our second point, your Honours, is that if an application is required, it would not condition the validity of the visa.

GUMMOW J:   It will be a ground of refusing it.

MR HANKS:   Yes.

GUMMOW J:   A ground for refusing it.

MR HANKS:   Yes, but would not ‑ ‑ ‑

GUMMOW J:   But not a ground requiring refusal.

MR HANKS:   It could be, your Honour.  Yes, indeed.  The Principal Immigration Officer could say, “Well, I require some information and in order to get that information I want you to complete a written application and provide the following documents to me”.  But it will be a very strange result if the failure of the PIO, Principal Immigration Officer, to require such an application would deprive his act in granting the visa of any legal efficacy and your Honours will understand that we have referred to what was said in Project Blue Sky about that matter.

KIRBY J:   There is a Freudian slip in the typed‑up version of the quote from that.  It says “cannot be valid”.  It means invalid.

MR HANKS:   Yes, you are right, your Honour.  You are right entirely.  I am very grateful.

KIRBY J:    I rushed to the text to see if that was in ours, but it is not.  It is in yours.

MR HANKS:   And I do not think Professor Freud was necessarily responsible, but it was a slip.

HAYNE J:   If he was, you need to get out more, Mr Hanks.

MR HANKS:   Your Honour has an ally in giving that advice.  Some of my friends say the same.  But we referred your Honours to what was said in Project Blue Sky and I do not need to take the Court to that in detail.  It is the obvious point that not every failure to comply with some step results in invalidity.  I believe that the relevant passages commence about paragraph 91.

KIRBY J:   This is a powerful point, but the point put against you is that there is this wide power, but it is by the Act subject to compliance with the conditions and if in this case one of the conditions is that it be done by somebody and an application made by somebody on behalf of the applicant, and if it appears from the evidence that it was not and that this will have consequences supportive of liberty, we would not normally struggle to give an interpretation that was destructive of liberty.  We would normally endeavour to give an interpretation that was supportive of liberty.

MR HANKS:   We would urge that approach on the Court and remind the Court that to ‑ ‑ ‑

KIRBY J:   Just a moment, I will make a note of that.

MR HANKS:   Your Honour and I are allies here.  We speak with one voice.

KIRBY J:   Just a moment, I want to make a note that the respondent urges the approach defensive of liberty.

MR HANKS:   Yes, indeed, for ‑ ‑ ‑

GLEESON CJ:   Asking the rhetorical question, what liberty?

MR HANKS:   What liberty, indeed.  For, your Honour, if that approach were taken and the visa was struck down on the basis that an application was an essential precondition, that being a question depending on the construction of the Act and the regulations, the appellant would be gravely at risk of losing his liberty, such liberty as he currently has.

KIRBY J:   He does not have any liberty.  How can he be in greater risk of losing his liberty?

MR HANKS:   Your Honour and I will have to disagree on that.

KIRBY J:   We will have to disagree.  He is behind barbed wire, behind a gate.

MR HANKS:   His presence in Nauru is not unlawful.  He is not a prohibited immigrant.

KIRBY J:   He did not ask to be there.

MR HANKS:   He is not amenable to prosecution.  He is not liable to be arrested without warrant and he is not liable to be directed to leave either before or after serving a term of imprisonment for a year.  All of those are consequences that one would bear in mind when considering how the Act and the regulations should be construed.  That is where your Honour and I, with respect, do agree.  That, we submit, is the proper use of that presumption.  Bearing that in mind, one would not readily conclude that the making of an application is a precondition to the validity of the grant of a visa.

GLEESON CJ:   If you find yourself to be a person who is in Nauru without permission and you are prosecuted and imprisoned and you get out of prison and you have not got the money or the means to leave Nauru, what happens to you then?

MR HANKS:   You get back on the merry‑go‑round, perhaps, your Honour.  Was that your Honour’s essential question?

GLEESON CJ:   Yes.

MR HANKS:   You can be required to leave, and there is that power in the Act to do so.

GLEESON CJ:   Presumably, you can only be made to leave if there is somebody who is prepared to bear the cost of your transportation to wherever you are going.

MR HANKS:   If the Republic is prepared to do that, that would be one resolution.  That is the power that is so contained in section 11.  The Principal Immigration Officer can make a removal order and then consequences follow from that.  There may well be a situation in which it is impractical to execute that order because the conditions for the execution of the order are spelt out in section 11(6), so I do concede that there could be such a situation.  It may be that, given those practical considerations about cost and the willingness of the recipient country to accept the person who is directed to leave, there may be circumstances in which those practical considerations effectively frustrate the proper execution of such an order.

GLEESON CJ:   That, I suppose, is a problem always inherent in deporting unlawful immigrants.

MR HANKS:   Yes.  We have not reached that position yet, your Honour.  What we have is a person who is at liberty to choose – “liberty” in that sense – to choose to stay where he is or to return to his country of origin, subject to making the necessary arrangements for travel documents and matters of that sort.

In addition to the consequences that would attach to reading the requirement for an application as a precondition of validity, namely, one might say, your Honours, turning the appellant into an unlawful person, there are other clear indications in the structure of the Act and regulations why one would not adopt that approach.

GLEESON CJ:   So far as I can gather from the evidence – and this might be a misapprehension on my part – that is the central function of the IOM, the making of arrangements to get people back to their country of origin.

MR HANKS:   That is a central function, your Honour.  It also has responsibility for the internal administration of the facilities.  I will say no more about what we describe as the Project Blue Sky point, other than to remind the Court that we deal with it in paragraphs 23 to 25 of our written submissions.

Now, in the present case, as your Honours have seen from the appeal book, there was, in any event, an application, and the application was made by the Australian Consulate‑General.

HEYDON J:   Page 11.

MR HANKS:   Thank you.  This is in relation to the visa that was current at the time of the return of the order nisi.

GLEESON CJ:   Well, there seems to be a challenge to his retainer.

MR HANKS:   There is.  The question is whether that application, within the terms used in the regulations, could be one said to have been made “on behalf of” the appellant.  Now, the parties, as we understand it, are agreed that the phrase in question takes its meaning from the context in which it is used.  We draw your Honours’ attention to section 18 of the Act in this setting:

A person who does not complete an application or other form of written information under this Act –

Let us assume that we, as it were, lose the first two points in this part of the argument, but let us assume that the power to grant a visa is one that is conditioned by the making of an application.  Let us assume that in the absence of that application the grant of a visa is somehow invalid, of no legal effect.  Even so, we say, such an application can be made on behalf of the person to whom the visa is issued in a setting where there is a deeming provision:

A person who does not complete an application . . . under this Act is deemed to complete it –

and there are two options –

if he causes it to be filled in or if it is otherwise filled in on his behalf.

So we have, as it were, three alternatives that are set out in section 18.  One, the person, or the appellant himself, completing the application; two, the person causing it to be filled in; or three, it being otherwise filled in on his behalf.  Now, in that setting, it is, we would say, entirely appropriate to treat the action taken by the Australian Consulate-General as action taken on behalf of the appellant, not as an agent, but as action which served the appellant’s interests, and served the appellant’s interests because it allowed for the issuing of a visa which legitimated his presence in Nauru.

KIRBY J:   Which he did not want but which the government, of which the Consul-General is the representative, arranged in collaboration with your government.

MR HANKS:   If he did not want the visa, your Honour, he could leave.

KIRBY J:   Well, we are back to Franz Kafka.

MR HANKS:   No, it is a very legitimate response.  This is a permission.  There was no obligation to accept the visa.  It is not thrust upon the person.  He is not compelled to accept it.  If the visa, or the conditions attached to the visa, are uncongenial, he can depart. 

KIRBY J:   I thought you might be arguing – you will recall that I said to Mr Burnside one would not want to construe the regulations in a way that diminished the protective position of international representatives.  There is some suggestion here that by regularising the appellant’s position, as it might be put, the process of continuing the scrutiny and consideration of whatever entitlement he had, wherever he had it, to asylum was safeguarded and that in that sense, whether he wanted it or not, the Australian Consul‑General was acting on his behalf in channelling this private organisation into moving whoever they could to get him some consideration of his asylum status.

For myself, I would not want to reduce the availability of assistance by Consuls-General or anyone else to people who are, for whatever reason, in another country and need assistance.  It was put to us that that is not available here because of that provision of the Australian Migration Act that says Australia does not give such protection and that, therefore, the Consul‑General had no business doing anything because he could not deliver the goods.

MR HANKS:   This is the evidence, your Honour.  The evidence is that there is an agreement between Australia and Nauru under which humanitarian endeavours are to continue in relation to the appellant and the other asylum seekers.  There is also evidence that the appellant and others were being actively considered by Australia for recognition of refugee status at the time that the order nisi was granted and, one would infer, at the time that the visa was applied for by the Consul-General.

KIRBY J:   Is that on the basis that though Australia does not have an obligation, it can, ex gratia, as it were, provide protection?  The Minister can give protection?

MR HANKS:   Of course.  The course of the treatment of the persons on Nauru, according to the evidence, was that throughout the time that they had been there, up until the time of the judgment in the court below, there was active consideration by Australia as to whether they had a claim for protection under the Convention, under the Refugees Convention.

KIRBY J:   So we sent these people, including the appellant, to Nauru though Nauru is not a party to the International Protective Convention for Refugees and out of a guilty conscience, the Memorandum of Understanding said, “We’ll comply with international law and will continue to process their applications and we’ll send our officers over there of our department to Nauru to do that”.

MR HANKS:   I can say nothing about the motives or the conscience of the other party to the Memorandum of Understanding.  So far as the Republic is concerned, the Republic, according to the Memorandum, has provided facilities to allow humanitarian endeavours to continue.

GLEESON CJ:   I am having some difficulty at the moment in my own mind in understanding the precise relevance of the information we have about the Memorandum of Understanding and the affidavits about IOM and so forth.  Just at the moment, because we are dealing with the question of the power of the relevant authority in Nauru under the Nauru legislation, it seems to me that the only relevance of that background information is to whether this is a special purpose visa.  What difference would it make to this case if the appellant had been a stowaway?

MR HANKS:   One difference, your Honour, would be that the special purpose visa would be less likely to be issued on humanitarian grounds under regulation 12(4) of the immigration regulations.  That is one of the provisions which is recited in the visa as providing the basis for its grant.

GLEESON CJ:   But the primary question, which is whether the Principal Immigration Officer is empowered under the Act to issue a permit called a visa to somebody who has never asked for one, is not affected in the least degree, is it, by the circumstance that the person to whom the visa has been issued is an asylum seeker or a stowaway or a shipwrecked sailor?

MR HANKS:   Quite so, your Honour, but we have made our submission on that point.  We have made our submission that it is not a condition of the grant of a valid visa that there be an application, a submission that had two parts, saying that arises from a reading of section 9(1), which is an unlimited power, and it also arises from a consideration of the matters raised in Project Blue Sky, namely that if you take those matters into account, you would not conclude that failure to comply with a condition that there be an application invalidates the grant.

I trust I have attempted to move on, your Honours, to the next point that even if there was such a requirement, in the present case an application had been made on behalf of the appellant.  I was responding to Justice Kirby’s questions about whether ‑ ‑ ‑

KIRBY J:   You say it is to his advantage and therefore it is on his behalf within the scope of these regulations?

MR HANKS:   Yes, that is right.  It provides, as it were, an opportunity for humanitarian endeavours to be made on his behalf, including the assessment of his claims to protection under the Refugees Convention.  It was just dealing with that point, your Honour, and that is why some of this additional material infiltrated into my submissions.  That will bring us to the question of the conditions attached to the visa.  I did apprehend that my friend suggested that the conditions might be bad.

HEYDON J:   What about sub‑delegation?  Are you going to deal with that later or as part of grounds 3 and 4, which I think are the next grounds.  Grounds 5 and 6 are on conditions.  You said that they had abandoned grounds 3 and 4 because of the silence in the written submissions.  Whatever the force of that, they seem to have been “de‑abandoned” because oral argument was put about it.

MR HANKS:   Your Honour, I thought that the reference to sub‑delegation emerged in the context of an attack on the conditions and only in that context.

HEYDON J:   What about ground 4(c), which is on page 124?

MR HANKS:   Yes.

HEYDON J:   It does not matter what order it is taken in.  It is just that the point, I think, does have to be dealt with.

MR HANKS:   Thank you, your Honour.  Again, plainly, it appears to be another way of getting at the conditions.

HEYDON J:   It is another way, yes.

MR HANKS:   Can I just, as it were, clear the ground in relation to what we understand to be the attack on the conditions.  Our friends did, we believe, suggest in argument this morning that the conditions might be bad, but the visa might be saved.  We have made the point in our written submissions that that question was not raised before the court below and should not now be raised.

GUMMOW J:   It is not raised in the orders sought at 125.

MR HANKS:   No, but it is a point that could have been met by evidence below.  We could have tendered an earlier version of the Memorandum of Understanding which indicated the attitude taken by the government of Nauru to the entry of these people, and they are concerned to limit the places on Nauru where they could be present.  We could have dealt with it in that way.  Of course, there is another response to the claim that there could be severance.

If one looks at the terms of the visa, in our submission, the visa would have a completely different operation without the conditions, and it is not possible to reasonably propose that the Principal Immigration Officer would have issued the visa without conditions restricting or defining those parts of Nauru where the appellant and others were permitted to reside and restricting their movement.

We have drawn attention in our written submissions to the absence in the Interpretation Act of Nauru to any equivalent of section 46 of the Acts Interpretation Act or similar provisions, so the presumption, as Justice Dixon said in the Bank Nationalisation Case – it is not on our list of authorities, but ‑ ‑ ‑

GUMMOW J:   We look at this later in one of the family law cases we had in about 188 CLR.  I have forgotten the name of it now.  That is to say, the common law rules about non‑severance, if you like.

MR HANKS:   There is a passage – and I could give the Court the reference if it is convenient – in the Bank Nationalisation Case 76 CLR 1. There is a passage in Justice Dixon’s judgment at 370 where his Honour talks about the common law position in the absence of a statutory provision such as section 46 of the Acts Interpretation Act.  His Honour said, well, the presumption is against severance in those circumstances.  And bearing in mind, we would say, the grant of a visa subject to the specified conditions, bearing in mind the nature of those conditions and the circumstances in which the visa was granted – the primary judge referred to some of those circumstances – the arrival in Nauru of a large number of people in a country of small population and small geographical area – it is, in our submission, not possible to rebut that presumption that the visa conditions were integral to the grant of the visa.

His Honour went on in the Bank Nationalisation Case to say that statutory provisions reverse that presumption, but, in the absence of such a statutory provision, one would presume no severance.  The consequence of that short point is that if the conditions are bad, then the visa is bad, and that is a matter that we will be calling in aid shortly.

The real question is whether the Act on its proper construction gave the Principal Immigration Officer power to impose the kind of conditions that were imposed, conditions that defined that part of Nauru where the appellant and others are to reside.  In our submission, that power comes primarily from section 9(1) of the Act:

The Principal Immigration Officer may grant a non‑citizen a permit, to be known as a visa . . . to –

(a)      travel to, enter and remain in Nauru;
 . . . 
according to its terms.

When one considers that power against the fundamental proposition recognised, as our learned friend said earlier today, in one of the first cases decided by this Court, that proposition based on international law recognised in Robtelmes v Brenan that every sovereign state has the power to exclude an alien or to permit an alien to enter, and if, granting that permission, to attach such conditions as the sovereign state thinks fit to the entry, effectively, this provision, section 9(1), gives effect to that proposition. 

That would be, Justice Heydon, our first response to a sub-delegation attack, namely, that there is power in the Principal Immigration Officer in any event, directly from section 9(1), to attach terms, which would include the conditions such as those with which we are concerned, to a visa.  There is power in section 9(2) to prescribe conditions of visas, and the prescription that is of principal relevance is found in regulation 12(4).

Before I take your Honours to that part of the regulation, it might be more accurate to say that the power to prescribe conditions is found in section 19 of the Act:

The Cabinet may make Regulations not inconsistent with this Act prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular prescribing matters for and in relation to –
 . . . 
(b)      the grant, extension and renewal, refusal of grant, extension and renewal, terms and conditions, and expiry and cancellation of permits ‑ ‑ ‑

KIRBY J:   Which paragraph are you referring to?

MR HANKS:   Paragraph (b), your Honour, of section 19.  But the effect of section 9(2) is to pick up any such regulations that are made and to incorporate them for the purposes of the exercise of the power under section 9(1).  Now, regulation 12(4), which the Principal Immigration Officer understood that he was exercising and granting this visa in January of 2004, authorises the officer:

on humanitarian or other grounds, [to] permit a person who arrives in Nauru without a passport to enter and remain in Nauru, or, where the person has already entered Nauru, to remain in Nauru, and for the purpose may grant to the person a special purpose visa, on such conditions as the Principal Immigration Officer thinks fit.

That undoubtedly gives the Principal Immigration Officer a discretion.  It is a discretion which we say is clearly contemplated by the Act.  It is a matter of detail which is entirely appropriate to be dealt with in regulations.

KIRBY J:   Do we know from the documents that this was or purported to be a special purpose visa?

MR HANKS:   We do.

GUMMOW J:   It says so on its face, does it not?

MR HANKS:   It does indeed, your Honour.  It is page 13.  It is a little obscured by the seal of the Supreme Court but it says, cutting through to the second line:

and in EXERCISE of the powers conferred on me under Part II Section 3(1), (2) of the said Act, do hereby issue forth this SPECIAL PURPOSE VISA –

Then there is a reference to the regulations, perhaps a little confusingly referred to as section 8(1)(g) – it should be regulation 8(1)(g):

and in accordance with the Section 12(4) –

it should be regulation 12(4) –

of the Immigration Regulations 2000.

There is nothing in the Act which would deny validity to a regulation which permitted from time to time the Principal Immigration Officer to attach particular conditions to a visa.  The conditions shall be as prescribed.  What is prescribed is authority for the Principal Immigration Officer to fix such conditions as the officer thinks fit for a visa of that character.

HEYDON J:   We are construing legislation enacted in 1999 and delegated legislation brought into force in 2000.  Do you know if any light is cast on the meaning of those provisions by recourse to the Immigration Restriction Ordinance 1961 or the laws repealed under Adopting Ordinance 1922?

MR HANKS:   No, your Honour, but we can address that if that would be of any assistance.

HEYDON J:   The question is:  is the reference to “condition” wide enough to cover these types of condition?

MR HANKS:   I understand your Honour’s question.  The extraction of those ordinances ought to be possible but it may take a little time.  I think we had some experience with this with a question that Justice Hayne asked last year about rights of appeal and it took us a few days to extract the relevant ordinances from the appropriate location.

We would accept that there is a limit on the conditions that the Principal Immigration Officer may attach under regulation 12(4).  Before we go there, our principal submission is that that sub‑regulation confirms the ambit of the power conferred on the Principal Immigration Officer by section 9(1), at least where that person or that officer is granting a visa of the kind contemplated by regulation 12(4) and regulation 8(1)(g), as he was in this case.  It goes back to the point that we made perhaps 10 minutes ago that the principal source for attaching conditions to a visa is found in section 9(1) itself.  It is essentially confirmed, that is the power to do so is confirmed by regulation 12(4), although, quite properly, the conditions which are imposed must be conditions that are relevant to the purpose for which the power is conferred.  That is the essential limitation which we would accept on the part ‑ ‑ ‑

GUMMOW J:   When you say 9(1), do you mean 9(2).

MR HANKS:   No, I do not, your Honour.  Our primary submission is that there is power in section 9(1) ‑ ‑ ‑

HEYDON J:   You say the meaning of the words “grant a permit” include grant a permit absolutely or grant a permit conditionally.

MR HANKS:   We also bear in mind, your Honour, the closing four words of subsection ‑ ‑ ‑

GUMMOW J:   Yes, but they refer to (a), (b) or (c).

MR HANKS:   Yes.

GUMMOW J:   That is to say, according to its terms, to remain, or according to its terms, to enter and remain.  I do not think you would get there by the last four words of 9(1) so I think you have got to do what Justice Heydon was just suggesting to you.  You have got to get it out of the words “grant a permit”, if you rely on just 9(1).

MR HANKS:   Section 9(1) plus of course the Interpretation Act.

GUMMOW J:   What provision of the Interpretation Act?

MR HANKS:   Section 69.  I do not know whether your Honours have an Internet print, page 26 I think of the Internet print, at least my version, pages 26 or 27, section 69:

Where any written law confers a power to issue any licence, permit –

et cetera. 

HAYNE J:   Further fact.

MR HANKS:  

then, unless a contrary intention appears, such licence, or permit or authorisation may be issued subject to such conditions, not inconsistent with that law, as the authority issuing it deems expedient.

GUMMOW J:   I am glad I persisted at the risk of appearing stupid. 

MR HANKS:   I am sorry that I did not jump to it immediately, your Honour. 

One might say an amplitude of power there confirmed by regulation 12(4).  Of course it must be for the purpose for which the power is conferred and that is the real limitation.  Here the purpose of the Act is, according to the long title:

To make provision for the entry of persons into Nauru, the presence of non‑citizens in Nauru, and the departure or removal of persons from Nauru.

We do say that the power conferred explicitly and by the operation of the Interpretation Act by section 9(1) is a power to be exercised so as to give effect to the right of Nauru to control entry into its territory of an alien.  That is one of its legitimate purposes, that is its right to say, “No, you can’t come in” or to say, “Yes, you may come in but only on condition that you enter and stay in this locality”.  That is essentially what the Privy Council said in the case that was cited by Sir Samuel Griffith in Robtelmes and…..  Your Honours, Robtelmes 4 CLR 395 and his Honour and Sir Edmund Barton in the same case picked up ‑ ‑ ‑

GUMMOW J:   I think we can almost recite Robtelmes by now.

MR HANKS:   Good.  I will not say any more.  It is found at page 400, about point 3, your Honour.

GUMMOW J:   Not necessarily fondly.

MR HANKS:   Might I say this, your Honour, that it has been repeated many times by Justices of this Court and endorsed many times.  We only make the point that just as the Privy Council recognised that right in Attorney-General for Canada v Cain shortly before Robtelmes was decided it is essentially a principle of international law derived from Vattel.  It is a principle which has infiltrated successfully to the common law and it is part of the law of Nauru that the government has that right to control entry or to permit entry subject to such conditions as it chooses to attach.

That is a principle – one might describe it as a principle of international law.  It is also a common law principle which ought properly to be taken into account in construing the Act, section 9(1), and construing the regulations and taking that into account the power of the Principal Immigration Officer did extend to attaching the conditions in question which defined that part of Nauru which the appellant was permitted to enter.

GUMMOW J:   On this question of severance, the reference I was looking for was to the House of Lords in DPP v Hutchinson [1990] 2 AC 783, referred to in this Court in Harrington v Lowe (1996) 190 CLR 311 at 326 to 328, namely, no possibility of distributive operation at common law, hence the need for those sections in our Interpretation Act in Australia.

MR HANKS:   Now, the conditions themselves – if I might just come back to them – need to be considered not as wrongfully detaining or imprisoning the appellant.  It goes back to a point on which Justice Kirby and I had some discussion earlier in our argument.  There is no detention ‑ ‑ ‑

KIRBY J:   Your argument, my reflection.

MR HANKS:   I was referring, your Honour, to ‑ ‑ ‑

KIRBY J:   I see.  I hope you were not referring to ‑ ‑ ‑

MR HANKS:   No, I was not tying your Honour to the submissions that we made, not in the least.  What these conditions do is to segregate the appellant and others who arrived in Nauru with him from the community.  They mark out that part of Nauru where they are to stay.  He is, as we have said, free to depart from Nauru at any time, in a setting where his claims for refugee status have been assessed on at least three occasions and rejected, in a situation where his country of origin is willing to accept his return and in a situation where 420 of his fellow Afghanis have returned voluntarily – 420 of those who arrived in Nauru with him.  It is in that setting that we ‑ ‑ ‑

KIRBY J:   Where is that proved in the record?

MR HANKS:   It is proved in – I will just check, your Honour, whether it is the affidavit of Mr Winter, which ‑ ‑ ‑

HEYDON J:   Page 53, line 21.

MR HANKS:   Thank you, Justice Heydon.

KIRBY J:   What was the page, I am sorry?

MR HANKS:   Page 53, your Honour, paragraph 7 of Mr Winter’s affidavit.  If your Honour is asking about numbers that have returned to Afghanistan, that is where that evidence is found.

GLEESON CJ:   What was the total population that is referred to in paragraph 7? 

GUMMOW J:   I do not think that is stated, is it?

MR HANKS:   No, it is not, your Honour.

GUMMOW J:   I could not find it.

MR HANKS:   I am not in a position to give your Honour an accurate figure, but I think – I made a mistake, but I think my friend referred to something like 1,200.

GLEESON CJ:   This is probably not a matter on which we would require evidence, but what is the total population of Nauru?

MR HANKS:   We think between 10 and 12,000, your Honour.  My friend says 12, I thought it was closer to 10.  My friend thinks that the number of persons who arrived in Nauru might have been – that is, asylum seekers who arrived in Nauru – might have been closer to 2,000 than 1,200.

KIRBY J:   And you might be more reliable because you have been there.

MR HANKS:   Your Honour, my presence in Nauru was short.

KIRBY J:   Not as short as Mr Burnside’s.

MR HANKS:   Well, that is an impossible comparison, your Honour.  His was the sort of inverse of infinity.

KIRBY J:   Zero.

MR HANKS:   Yes.  And your Honour does not require any evidence from me as to what happens in Nauru.  We make that point simply because we are saying, well, these conditions simply segregate the appellant and others from the community of Nauru in circumstances where he is free, as others have chosen to do, to leave Nauru.  That is our point.

KIRBY J:   Yes, but in statistics lie all sorts of fallacies, because these might be Pashtun or other community groups and they may not have the same fears.

MR HANKS:   They might be.  They might be Hazara.  We do not know, your Honour.

KIRBY J:   It is not disclosed by that affidavit.

MR HANKS:   But the obvious point, which I think we can make, your Honour, is that the government of Afghanistan has not stood in the way, indeed, has facilitated, according to Mr Winter, the return of those people to Afghanistan.  There is evidence in Mr Winter’s affidavit about the visit to Nauru of a minister from the Afghanistan government seeking to facilitate return, and that can be found on page 55.

The point that the appellant was free to depart from Nauru was made by Chief Justice Connell in the judgment below.  His Honour made the point at page 116 in the appeal book and onto page 117 in paragraph 30 of his Honour’s reasons for judgment.  Our short point, bearing in mind the matters that were raised in the judgment below in paragraph 31, which is found at page 117, is that these conditions were not punitive, they were designed to protect the Nauruan community from the influx of a large number of people, they were consistent with the purposes and objects of the Immigration Act and within the power expressly granted in section 9(1) and regulation 12(4).  They are valid; that is our argument.

One more point if I might, your Honours.  The question about the circumstances in which a person might be brought to a country involuntarily and yet still be treated as entering the country as an immigrant subject to controls of immigration, Justice Kirby and Chief Justice Gleeson both raised this question.  There is discussion of that point in a case called O’Keefe v Calwell (1949) 77 CLR 261. We have copies here for your Honours if it would be of assistance. There are two passages, one in the judgment of the Chief Justice, Sir John Latham, and the other in the judgment of Sir Owen Dixon. Your Honours will see that each of them dissented but not on this point.

The case went off on the question whether the Minister was entitled to treat the plaintiff as a prohibited immigrant.  It was related to her arrival in Australia.  The operation of the dictation test, some certificate which was issued to her, then the revocation of that certificate – all of these were the points on which the case was decided.  I just draw your Honours’ attention to page 275, at about point 5 on the page, where Sir John Latham dealt with an argument that the fact that:

the plaintiff . . . was brought here under military orders, and so did not enter Australia voluntarily –

meant that she was not an immigrant ‑ ‑ ‑

GUMMOW J:   They were being evacuated from Japanese invasion, were they not?

MR HANKS:   That is right.  Yes, your Honour.

GUMMOW J:   Of the East Indies.

MR HANKS:   That is right.  Then his Honour said:

The suggestion that entry must be voluntary before a person can become subject to the provisions of the Immigration Act prohibiting entry was made in Chia Gee v Martin –

and your Honours will see that was in volume 3 of the Commonwealth Law Reports, decided in 1905.  That is the example of stowaways.  His Honour said that:

they could properly be convicted . . . “It would be reducing the Act to a nullity if it were held that the test of whether a man were an immigrant or not was to be some intention in his mind, which intention the Commonwealth authorities might have no means of discovering”.

There is a similar reference to this issue in Sir Owen Dixon’s judgment on page 288 at point 5.

KIRBY J:   That is helpful to have that reference, but one gets a feeling that some of these cases, written in the heyday of the White Australia Policy, may need to be reconsidered ‑ ‑ ‑

MR HANKS:   That is so, your Honour.

KIRBY J:    ‑ ‑ ‑ in the environment of Australia today and maybe never, ever, applied to a case like Nauru.

MR HANKS:   Of course, that may be possible, but ‑ ‑ ‑

KIRBY J:   The concern about skin pigmentation, which so affected the early history of the Commonwealth, may never have afflicted Nauru.

MR HANKS:   The short point, though, your Honour, is this, the intention of the person physically entering the territory, the degree of control which that person has over his or her movement, does not control the answer to the question “Is the person entering the territory?”

KIRBY J:   I am only responding to the fact that the reason given by Sir John Latham as to why that was so was because otherwise it would be a nullity, and that could not be so, because we have to keep people of strange pigmentations out.  I am just saying that perhaps some of this reasoning might not be so firm.  You see, he goes on to say:

“It would be reducing the Act to a nullity if it were held that the test of whether a man were an immigrant or not was to be some intention in his mind ‑

and so on.

MR HANKS:   Yes.  Well, your Honour, I do not see any reference to that other irrelevant consideration of pigmentation.

KIRBY J:   Well, it did not have to be spelt out in those days, Mr Hanks.

MR HANKS:   Well, it is a short point, your Honour, that Australia has ‑ ‑ ‑

KIRBY J:   Justice Heydon, rather helpfully, I think, pointed out that Mr Calwell, then Minister, was the respondent to the proceedings.

MR HANKS:   And a fine Minister, your Honour.

KIRBY J:   A fine and important Minister, but nonetheless a person affected by his age.

MR HANKS:   Different times.

KIRBY J:   His time, as we all are.

MR HANKS:   Different times, different values, your Honour, but there is nevertheless a basic point here, that in order to have effective control of those who enter, their state of mind at the time they enter cannot control the question whether they ‑ ‑ ‑

KIRBY J:   It was not so much the mind of the appellant that was concerning me, it was his physical custody, from the moment he got on the Royal Australian naval vessel to the time he ended up in Hilltops or whatever you call it.

MR HANKS:   Your Honour raised an objection, could it not be said that the appellant did not enter Nauru, and we say ‑ ‑ ‑

KIRBY J:   It is on that point that I am grateful for the reference.

MR HANKS:   Yes.  We say, as we said earlier before lunch, possibly, it is a term that does not carry any complicated meaning.  “Enter” simply refers to the fact of moving or being moved across the border.  Thank you, your Honour.

GLEESON CJ:   Yes, thank you, Mr Hanks.  Yes, Mr Burnside.

MR BURNSIDE:   If the Court please.  There are five short points which I hope I can deal with in just a few minutes.  First of all, the question whether, if the visa is struck down, it would follow that the appellant would be immediately liable to prosecution and possibly gaol for an offence.  I have already dealt with the possible range of outcomes.  Even if that were so, and even if we were prosecuted, it certainly would not automatically result in his being gaoled.  But there is another way of looking at it, which is that section 10(1)(a) is the starting point, identifying “prohibited immigrants”:

a person who, not being entitled to enter Nauru without a permit under section 8(2) . . . is not a holder of a valid permit granted under this Act –

That directs attention to section 8(2):

Subject to subsection (3), no person shall enter Nauru from overseas without a valid permit to do so.

That takes you to section 2, which defines “permit”.  A permit:

includes any permit, permission, visa or other authorisation granted under this Act –

It is apparent from the terms of the Memorandum of Understanding that that document is an expression of Nauru’s permission for the people covered by it to be brought into Nauru.  So it does not automatically follow that the appellant would be a person to whom section 10(1)(a) would automatically attach. 

The second point – your Honour the Chief Justice asked shortly after lunch some questions predicated ‑ ‑ ‑

HAYNE J:   Can I go back to that first point? 

MR BURNSIDE:   Yes, your Honour. 

HAYNE J:   Is that to read the words “granted under this Act” as attached only to “authorisation” in the definition of “permit”? 

MR BURNSIDE:   There are two ways of reading it.  One is that “visa or other authorisation granted under this Act” is a compound expression because the Act is concerned with visas and other authorisations.  The other is that the ‑ ‑ ‑

HAYNE J:   It reads, permission as not qualified by “granted under this Act”. 

MR BURNSIDE:   It would be necessary to read it that way.  It would at least be an argument available to the appellant in the event – we would say, the improbable event – that proceedings were taken against him if the visa was struck down.  A great deal of what has been said today seems predicated on the assumption that the appellant would have only this visa, with these restraints, or no visa at all.  That is something which is not self‑evident and not something on which the Court should proceed, in our submission.    The possibility of Nauru and Australia coming to terms with providing the appellant and others with visas not coupled with restrictions that are invalid should not be discounted.  We do not know, but it means that the alternative to the current visa is not an illusion of liberty, but a real prospect of liberty.

Your Honour the Chief Justice asked some questions after lunch which seemed to be predicated on the assumption that the appellant and others have made applications for Australian protection visas ‑ ‑ ‑

GLEESON CJ:   No, I was just questioning whether there was any evidence about that.

MR BURNSIDE:   Yes.  There is not, and there seems to be no suggestion whatever that they have made those applications.  On the contrary, it seems that they are precluded from making those applications, and these are the provisions that were asked about just before lunch ‑ ‑ ‑

GLEESON CJ:   Well, what are they being processed for by the Department of Immigration?

MR BURNSIDE:   We do not know.  We do not know. 

KIRBY J:   Why would the Australian department be doing anything that had nothing to do with its statute?  Why would officers of the Commonwealth be discharging functions that were not related to their duties to administer the Migration Act 1958 of the Commonwealth of Australia?

MR BURNSIDE:   We do not know.

KIRBY J:   Would one not infer that that is what they are doing? 

MR BURNSIDE:   You might hope that that is what they are doing, but it is not an available inference.

KIRBY J:   It is a pretty strong inference, is it not?  Otherwise they are misusing their time and wasting federal money of Australia.

MR BURNSIDE:   That may be so, but the reason that they are not able to be doing it is this: sections 46A and 46B that Justice Hayne referred to before lunch deal with offshore entry persons and transitory persons respectively. Offshore entry persons and transitory persons are the people who ended up in Nauru, so Mr Ruhani, the appellant, is an offshore entry person.

An offshore entry person is prohibited from making an application for a protection visa whilst in Australia.  Schedule 1 to the Migration Regulations, paragraph 1401, provides for the manner in which a protection visa is to be applied for and it provides that the relevant form, form 866, can only be completed in Australia whilst the applicant is in Australia.  That requirement operates to preclude the possibility of offshore entry people making a valid application.

KIRBY J:   That may be a question of the applicant’s rights, but my recollection is that the Minister has rather large residual powers that he or she cannot be forced to exercise but which still reside in the Minister.

MR BURNSIDE:   There is an exception in both 46A and 46B which allows the Minister to, in effect, permit a person to make an application even though they are an offshore entry person or a transitory person.

GUMMOW J:   Wait a minute, 46A(1)(a) would not apply, would it:

made by an offshore entry person who:

(a)      is in Australia ‑ ‑ ‑

MR BURNSIDE:   Yes.

An application for a visa is not a valid application if it is made by . . . 

(a)      is in Australia –

Australia is the only place where an application for a protection visa may be made.  That is paragraph 1401 of Schedule 1 of the regulations.

GUMMOW J:   We do not have that.

HAYNE J:   I must say that is a startling result, in that I thought that applications were commonly made offshore, and, indeed, gave rise to this whole notion of so‑called “queue jumping”.

MR BURNSIDE:   Those applications are dealt with also under the schedule in paragraph 1402, Refugee and Humanitarian (Class XB) Visas, and, when you go to the subclasses, they appear to be subclasses of visas not available to people who are part of the “Pacific solution”.

GLEESON CJ:   These asylum seekers, as they are called throughout the evidence, are manifestly not seeking asylum in Nauru.

MR BURNSIDE:   No.

GLEESON CJ:   Well, they are called asylum seekers.  We have Australian government officials processing their applications for asylum.  It does not require a tremendous leap of the imagination to reach the conclusion that they are seeking asylum in Australia, does it?

MR BURNSIDE:   Your Honour, it is plainly an inference available that when they were on their way to Australia, they intended to seek asylum in Australia.  It seems that the purpose of the provisions that are collectively called the “Pacific solution” was to prevent them from doing just that.  Now, there is no suggestion in the evidence – and all of the evidence, all of this material, is in the exclusive control of the respondents.  They did not put forward one skerrick of evidence to suggest that any of the people on Nauru, including the appellant, have any right whatever to make an application to Australia for protection, or that they have made any such application.

HAYNE J:   Well, why is that in the control of the respondent, Mr Burnside?  Why?  They are in Nauru, they are not in Australia, and you are referring to what Australian officials are doing.  Why is that under the control of Nauru?

MR BURNSIDE:  Well, with respect, your Honour, the affidavit  ‑ ‑ ‑

HAYNE J:   It is a startling proposition that Australian officials are under the control of Nauru.

MR BURNSIDE:   I am not suggesting they are under control of Nauru, but the material put in by the respondent includes material prepared by officers of the Australian Department of Immigration.  They put forward whatever evidence was in their power to put forward.  One thing is clear, the appellant has no knowledge of these things whatever.  How could he?

KIRBY J:   Well, there are a lot of startling things here.  The fact that the Australian officials are in Nauru anyway. 

GLEESON CJ:   I am not sure that it is clear that the appellant has no knowledge of these things.  Is there evidence of that?

MR BURNSIDE:   We know that he has not applied for a visa.

GLEESON CJ:   What is said in the affidavit about the appellant’s knowledge is minimal.  I do not even know whether the appellant can speak English.

MR BURNSIDE:   I do not know that either.

GLEESON CJ:   I do not know whether the appellant has signed an application of some kind.

MR BURNSIDE:   And we do not know that either.

GLEESON CJ:   Exactly.

MR BURNSIDE:   Your Honour, it is probably best we do not beat around the bush.  The material which is put forward by the respondents was put forward on 28 and 29 April.  That is during the hearing itself.  We were not there.  We were not in Nauru.  Whether Mr Ruhani was present in court that day I cannot say, but the fact is that Mr Wait, who swore an affidavit for the respondent, identifies himself on page 7 as an officer of the Department of Immigration, and Mr Long, who swore three affidavits ‑ ‑ ‑

KIRBY J:   The Australian Department of Immigration?

MR BURNSIDE:   The Australian Department of Immigration.  Mr Long swore three affidavits on behalf of the respondent and he also identifies himself as working for the Australian Immigration Department.

GLEESON CJ:   We just have no basis of forming any conclusion as to how much or how little your client knows about what is going on.  We assume he is your client.

MR BURNSIDE:   We do have his signature on a form asking for legal help, saying that he is detained against his will.  If I may say, in habeas corpus cases, that is not an uncommon circumstance.  What is uncommon is that there should be any suggestion from the respondents, who plainly enough have access to Department of Immigration officials and who got four affidavits from them, that they are not able to say affirmatively that Mr Ruhani, or anyone else, has made an application to Australia for protection, which is being considered.

Certainly, the language they use does not suggest that he has an application to Australia.  It is always couched in the language of his claim for asylum or his claim for refugee status.  There is nothing in the Memorandum of Understanding that suggests that the people taken to Nauru, pursuant to its terms, would be processed for protection visas in Australia.  And that is the very place you would expect to find it, if that is the process that was contemplated.

In addition, there is no suggestion in the material that any of the provisions for review and appeal, which an Australian application would bring with it, have attached to any of the applications that are being processed under the “Pacific solution”.  On the contrary, what you see is that their claims are being re‑examined from time to time, not that they are being reviewed by the RRT or by the courts or anyone else.

Can I clarify our position on sub‑delegation.  If the restraint conditions are authorised in fact by the regulation then, in our submission, that involves necessarily an invalid sub‑delegation of power.  Our primary argument, however, is that the regulations do not authorise the restraint in the terms in which it was imposed and, therefore, it is not necessary to find that there had been a sub‑delegation.

If 12(4) is read as limited by regulation 16 allowing only conditions that are within the limits set by the other regulations then plainly enough these restraints would not be valid and no question of sub‑delegation would arise.  Finally, and this is perhaps the principal point in my whole case, our learned friend says that Robtelmes clearly recognises the power of every nation to allow entry on whatever terms it stipulates.  This makes more significant the fact that the people who are entering have not entered of their own volition and attaching conditions to entry does suggest some reciprocity in the arrangement.

I ask for permission to enter.  I am allowed to enter on conditions imposed but one would expect to see that I had a right to say, “Well, I don’t like the terms therefore I won’t enter.”  The question is whether Nauru has in fact exercised its sovereign right to impose conditions of this sort as a condition of entry.  If it has then it has given itself the right to order people not suspected of an offence to be detained for an indefinite time.  That is such a substantial restriction of liberty that it should only be found to have been conferred if the clearest words are found.  There is nothing in the Act that allows such a restriction on liberty to be found.

KIRBY J:   You have to grapple then with Mr Hanks’ statement that he has chosen to stay, that he can finish this ordeal at any moment by leaving.

MR BURNSIDE:   Your Honour, that does not, with respect, validate the condition.  It does not validate the condition.  It does not mean that section 9 of the Immigration Act has in sufficiently clear terms authorised the Principal Immigration Officer to, in effect, order a person to be detained indefinitely and if it has not conferred that power, then the condition is invalid.  It is beyond the power conferred on him.  It would not matter whether the appellant out of fear or hope has contented himself with his present position of three and a half or four years in detention or not.  The condition would remain invalid, and his acceptance of it does not make it valid.

GLEESON CJ:   Actually, what it says on page 13 is that the stay will not exceed six months.

MR BURNSIDE:   Yes, and that is an expression of some optimism because each of the preceding Memorandums of Understanding seem to say the same thing. 

GLEESON CJ:   No, no, I am looking at the visa.

MR BURNSIDE:   I am so sorry.  Yes, I think each of the visas has been for six months.  That raises the final point that I wanted to mention.  It is said that this is a visa granted pursuant to section 9.  In our submission, this is self-evidently either an extension or a renewal of a visa.  Extension and renewal of visas is governed by regulation 18 and regulation 18 in terms requires an application by the holder of the visa, not on their behalf, but by the holder.  That puts the application of the Consul-General in a different light, in our submission.

The language of the visa is ambiguous.  It purports, in its prefatory words, to be granted pursuant to regulation 8(1)(g) and regulation 12(4).  But it is self‑evident that it is a renewal or an extension of an existing visa, it responds to a request to extend the visa, and it begins, in its operative part, by reference to an extension of the stay.  It is, on any view, an extension of a prior visa and therefore governed by regulation 18, not regulation 12(4).

GUMMOW J:   That may have been appropriate to put in chief, I suspect.

MR BURNSIDE:   It is in our ‑ ‑ ‑

HEYDON J:   It was put in writing.

MR BURNSIDE:   It was, yes.

KIRBY J:   I have two little questions and it may be more convenient for you to deal with them in writing, if that is what you want to do.  The first is, you will remember reference was made to regulation 13(1), which contemplated that applications would be made in writing.  Now, that sort of provision rather suggests that the conditions are not such conditions that are absolutely essential to the validity of the permission to stay or likely to inhibit the exercise of the power.  Therefore, the question is, why should one infer that other conditions restrict the grant of the power in such ample terms as section 12(1), I think it is, of the Act permits?  So that is the first question. 

The second question is – and I raised this bit with you before, but you may have said everything you want to say about it – the words “on behalf of” are such that one would not, or I would not, want to construe that in a way that restricted people outside, including, for example, pro bono lawyers or others acting on behalf of a person, even though that person did not know and even maybe did not want, in ignorance of their full legal rights, that person to act for them.  And yet it is on their behalf, because it is in their interests. 

Now, whatever the Australian officials are doing up there, and it may be from the record, we have no way of knowing, but if what they are doing there is processing applications for humanitarian aid and/or refugee status, somewhere, with someone, why would that not be construed as being done on their behalf?  Why would the Consul‑General of Australia, even if not processing an application to the Minister in Australia, not be doing it on behalf of a person like your client, given that it is said to be, and one might infer, for humanitarian purposes, that he will receive protection somewhere else?  And why would one not give the Act an interpretation that was beneficial in that sense?

MR BURNSIDE:   Because it is plainly not beneficial to invite Nauru in these circumstances to grant permission which is conditional on the applicant being locked up.  There is nothing in the Memorandum of Understanding that presupposes that the residency in Nauru would involve complete segregation and detention, and, therefore, there is no reason to suppose that the Consul‑General, in making an application, was pursuing the interests of the appellant, given that ‑ ‑ ‑

KIRBY J:   Why not?  The Consul‑General would just maybe be facing the reality, “He is locked up, but I am going do whatever I can, even if it does not involve Australian grant of refugee status, to act to try to get him asylum somewhere”, hence the processing for humanitarian purposes.

MR BURNSIDE:   His being locked up does not enhance any application for humanitarian help anywhere.

KIRBY J:   We are concentrating at the moment on whether this application for the visa was made on his behalf by a stranger who he says he never gave authority to.

MR BURNSIDE:   If the Court thinks, in the circumstances, that the application was made in his best interests, then it may, in that sense, be seen as being on his behalf.  However, regulation 18 does not permit an application for renewal or extension to be made on his behalf.  It has to be made by the holder. 

GUMMOW J:   Wait a minute.  Section 18 uses the words “renewed or extended”:

of a visa which may be renewed or extended –

Section 8(2) just talks about extension, does it not, for special purpose visas, so it would not be a renewal, would it?  It would have to be an extension.

MR BURNSIDE:   It probably is an extension, and the operative words of the replacement visa suggest it is an extension. 

KIRBY J:   You say the inference here, given the time lapse, is that he has been the subject of a later application and at the time the Australian Consul made the application, it was for a renewal, not for the primary grant, given the date of that application?

MR BURNSIDE:   That is plain from the face of it.  If you go to page 11, first of all you see that the application is dated 15 January 2004, so he has already been there for two and a bit years, from late 2001 to the start of 2004.  The second paragraph recites that:

The current visa expires on 29 January 2004 and an extension for a further six months is sought.

GLEESON CJ:   You are asking us to make an order or declaration in the nature of habeas corpus.  The evidence is very out of date, is it not?  For example, the visa that we have all been looking at expired months ago.  Is there any evidence that there is another extension or another visa?

MR BURNSIDE:   There is no evidence.

GLEESON CJ:   What is it that brings us up to date factually in relation to the actual orders that you want us to make?

MR BURNSIDE:   There is nothing that brings you up to date beyond what was before the court at the time the order nisi was discharged in May of last year except for the affidavit of Mr Long of 11 June at page 119 which is only shortly after the event and that discloses that the second applicant had, after the application was made, been accepted as a refugee.

GLEESON CJ:   Does that mean that if we were to allow the appeal you would be asking us to remit the matter to the Supreme Court of Nauru?

MR BURNSIDE:   No, we would ask that the order be made absolute.  The reasons would demonstrate why the order was made absolute and that would enable the officials on Nauru to know whether they were entitled, as a matter of law, to impose on visas of this sort conditions that amount to total restraint.  After that ‑ ‑ ‑

GUMMOW J:   The other way of doing it would be to make a declaration as to what the Chief Justice of Nauru should have done at the time and refer it back to further consideration as to whether there has been any supervening events which would stand in the path of an implementation order now.

MR BURNSIDE:   That is an obviously attractive idea.  It has one possible difficulty.  I understand that the term of the Chief Justice of Nauru may have expired by virtue of his age and I am not sure that there exists a new Chief Justice of Nauru.  That might then leave the final resolution of the matter in a void. 

KIRBY J:   The third possibility is that the Court resolves the question of whether error has occurred and, if it has, then perhaps reserves some opportunity to you, this being a habeas corpus application, to bring further

material on that brings the record up to date, insofar as that is necessary for the making of orders.

MR BURNSIDE:   Yes.  That may also involve further delay, but, if the order nisi were made absolute, then that would operate to secure the release of the appellant, and the reasons no doubt would operate to guide the officials in Nauru about what sort of visas they are allowed to issue.

GLEESON CJ:   Perhaps you might both like to consider the point that has just been raised and put in, within 14 days of today, any submissions that you want to put on it.

MR BURNSIDE:   Yes.  If the Court please, perhaps I can answer Justice Kirby’s first question?

KIRBY J:   You may have already said enough about that.

MR BURNSIDE:   Thank you, your Honour.

GLEESON CJ:   Mr Hanks.

MR HANKS:   There was some reference in the course of my friend’s reply to the absence of evidence.  Does the Court have in mind that some evidence might be relevant?

GLEESON CJ:   No, I just wanted to hear what the parties had to say about the fact that the evidence that we have relevant to the orders that we are asked to make – we do not even have before us the current visa pursuant to which Mr Burnside’s client is lawfully in Nauru.

MR HANKS:   That deficiency cannot be cured without evidence.

GLEESON CJ:   We are just inviting submissions from the parties.

MR HANKS:   Yes, your Honour.

GLEESON CJ:   Very well.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 4.38 PM THE MATTER WAS ADJOURNED