SZ v MIMA

[2001] HCATrans 37

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S164 of 2000

B e t w e e n -

SZ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE

Third Respondent

DIRECTOR, AUSTRALIAN PROTECTIVE SERVICE

Fourth Respondent

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Fifth Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Sixth Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001 AT 11.16 AM

Copyright in the High Court of Australia

__________________

MR S.W. TILMOUTH, QC:  If the Court pleases, I appear with my learned friend, MR R.W. KILLALEA, for the applicant.  (instructed by Coelho & Coelho)

MR D.M.J. BENNETT, QC, Solicitor‑General for the Commonwealth:  If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the first and second respondents.  Our submissions erroneously say, “on behalf of the first respondent” only, they should say, “on behalf of the first and second”.  (instructed by the Australian Government Solicitor)

GAUDRON J:   Yes.  I should indicate that I hold a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the third, fourth, fifth and sixth respondents that they do not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.  Yes, Mr Tilmouth.

MR TILMOUTH:   If the Court pleases, your Honour Justice Kirby may remember, in particular, that this matter was originally an application ‑ ‑ ‑

KIRBY J:   I do indeed.  There is no objection to my sitting in the matter?

MR TILMOUTH:   No, of course, if the Court pleases. I wanted to remind your Honour and the Court, however, that when that matter came before your Honour it was, in effect, a representative action for the applicant and 119 other people who had brought proceedings, under section 75(v) of the Constitution, for prerogative relief and the matter was remitted and it comes back by way of application for special leave to appeal. All of them, your Honours, except one, I think, were seeking protection visas. A number of them had only been as far as the delegate’s decision and a considerable body of them had been both to the Review Tribunal and had been refused.

Now, the point I seek to make about the question of refugee status, your Honours, is that the criteria and the statutory basis has changed considerably, indeed, from 1 September 1994 and since Lim’s Case was decided.  The requirements, your Honours, before the current requirements, may be seen in the materials which were filed yesterday and they appear most conveniently at page 6 of the materials volume and it is what was then section 22AA which is point 9 at page 6:

If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee.

“Refugee” was defined, your Honours, by reference to the meaning of that term within the Refugee Convention in the definition section of the Act as it then stood.  Now, if the Court pleases, the current regime, however, has changed, in our submission, quite significantly, and the most convenient place to see that is in the application book at page 26 and 27.  If the Court pleases, the current provision - there are a number of changes in numbers, but it is now section 36 which appears at the application book, page 26 at line 40, and that deems:

There is a class of visas to be known as protection visas.

Subsection (2) provides that:

A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

On page 27, if the Court pleases, the Minister - this is section 65, at line 10:

After considering a valid application . . . 

(a)  if satisfied that:

(ii):  the other criteria for it prescribed by this Act or the regulations have been satisfied;

is to grant the visa.

KIRBY J:   But it still interposes the Minister’s satisfaction.

MR TILMOUTH:   It does, but the test, if the Court pleases, or the consideration is now not the refugee status.  In my submission, what is quite important now is the central question is whether or not the applicant, the non-citizen, is a person to whom Australia has protection obligations under the Refugee Convention.  Now, in my submission, that is quite a different matter altogether and those obligations, if the Court pleases, in our submission ‑ ‑ ‑

GAUDRON J:   Different in what respect?

MR TILMOUTH:   Because the question is not whether the person is a refugee, per se, the question is whether or not Australia owes obligations under the Convention to that individual person.

GAUDRON J:   Yes, well, how does that differ?  I mean, it is all very well to assert that that is a different question, but how does it differ?  Do you mean to say that under the earlier provision one had regard only to whether the person concerned satisfied the definition?

MR TILMOUTH:   That is right.

GAUDRON J:   What do you say one has regard to now, the exception ‑ ‑ ‑

MR TILMOUTH:   The obligation ‑ ‑ ‑

GAUDRON J:   Which obligation?

MR TILMOUTH:   The obligations, in my submission, boil down to those appearing in the Convention at page 85 of the materials, if the Court pleases.

KIRBY J:   Your theory is that there is a fixed norm which has to be elucidated and then applied, of the facts, and that that is, of its character, judicial power.

MR TILMOUTH:   Yes, it is.

KIRBY J:   But there is a quote from Justice Murphy that suggests that it is a complete fallacy to think that every time an administrative decision-maker applies the law, it is exercising judicial power, because administrative decision-makers have to do that.  We are all under the rule of law, everyone has to do it.  So that that seems to be a fallacy that strikes at the heart of your theory.

MR TILMOUTH:   Well, that may be understood, if the Court pleases.  In our ultimate submission, one goes back to perhaps the three criterion that your Honour has set out in Breckler and looks at the nature of the power, collateral, review, and so on, and enforcement.  But the point I am beginning on this is the content of the satisfaction is quite different.  I was going to take your Honours to the Convention at page 85, if I may, because one asks, “Well, what are the obligations to this person?”.  Now, the person must ultimately, of course, be a refugee and, in that sense, one of the questions is the same.  But, in my submission, one must begin by asking the question now, “What are the obligations ‑ ‑ ‑

GAUDRON J:   No, whether there are obligations.

MR TILMOUTH:   Yes, and those obligations are, in our submission - there are a number of them but the most important are in Article 32 and that is the obligation of Australia as a contracting State not to expel and the second obligation, number 2, is:

The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law.

Now, of course, that does not, of itself, necessarily compel a judicial hearing but it is a step, in my submission, in that direction.  It must be remembered in this case, of course, that below, the applicant was not ‑ ‑ ‑

GAUDRON J:   In fact, in most of these cases, they get several hearings.

MR TILMOUTH:   They do, but, if the Court pleases, before the Tribunal they have no right of representation. If they are to seek review in the Federal Court, it is very limited, as the Court knows, and if they seek review in this Court under the Constitution, the very remedy, of course, is limited to jurisdictional-type errors or errors on the face of the record and limiting considerations of that kind. But in our submission, the essential question has become the obligation rather than the status as a refugee.

GAUDRON J:   No, not “the” obligation, whether there is “an” obligation.

MR TILMOUTH:   Quite so, and I accept ‑ ‑ ‑

GAUDRON J:   And that really comes down to the question whether the person is a refugee.  It is still the same question, is it not?

MR TILMOUTH:   That is a condition, of course, as the Court has said in earlier ‑ ‑ ‑

GAUDRON J:   Yes, and if the condition is satisfied, there is an obligation.

MR TILMOUTH:   Yes, I accept that.

GAUDRON J:   So, there is no question of the identification of the obligation, only whether the condition is satisfied.

MR TILMOUTH:   That is true, but one does ‑ ‑ ‑

GAUDRON J:   Which is exactly the same question as was previously asked, as was considered in Lim.

MR TILMOUTH:   Ultimately it is but, in my submission, what has happened here, if the Court pleases, by the change in emphasis and focus, is that there has been an incorporation now into domestic law of the Convention requirements.  In Lim’s Case, of course, it was accepted that, as 22AA then stood, there was purely an exercise of executive power and, therefore, Chapter III did not come into it.

GAUDRON J:   What provisions do you say are invalid?  Those that permit the Minister to grant a visa?

MR TILMOUTH:   Yes.

GAUDRON J:   So that, as things presently stand, on your argument, then, although Australia has an obligation there would be no way in which a refugee could, within the Australian processes, avail himself of the benefit of that obligation.

MR TILMOUTH:   My submission is, if the Court pleases, that section 36, in particular, is now an incorporation into domestic law ‑ ‑ ‑

GAUDRON J:   So?  So the Minister cannot grant - he can grant a visa or he can only not refuse a visa?  Where does your argument go?

MR TILMOUTH:   He can do both.  I do not adopt the argument that one is administrative and the other is judicial.  In my submission, the satisfaction test is now ‑ ‑ ‑

GAUDRON J:   Well, what is the point of this matter?

MR TILMOUTH:   The point is, if the Court pleases, that section 36 now incorporates into domestic law, in effect, the Convention.

GAUDRON J:   So?  With what consequence?

MR TILMOUTH:   The consequence is there is an existing right to a determination of the matter according to law.

GAUDRON J:   By what?  A determination of what right?

MR TILMOUTH:   The right to a determination of the question whether or not the applicant is a refugee entitled to protection by Australia.  Now, in my submission, if the Court pleases, that differs this case from Lim’s Case because ‑ ‑ ‑

GAUDRON J:   That is not precisely the argument you put before, is it?

MR TILMOUTH:   It was not put in the court below, no.

GAUDRON J:   No.

MR TILMOUTH:   The right that I put in the court below was the right to recognition as a refugee.  Hai’s Case, in particular, and Thiyagarajah’s Case, a subsequent decision, confirms that that is a conditional ‑ ‑ ‑

GAUDRON J:   So what you say the consequence now is that a person is entitled to a judicial determination, where - in this Court I suppose you would say ‑ ‑ ‑

MR TILMOUTH:   Well ‑ ‑ ‑

GAUDRON J:   Let us follow it through - there is no vesting of jurisdiction anywhere else, is there?  It would have to be, in this Court, pursuant to 75, would it not?

MR TILMOUTH:   Under existing law, yes.

GAUDRON J:   Yes, but there would be no way because you could not rewrite section 36.  You could declare a person was or was not a refugee but there would be no way of forcing the Minister to become satisfied that the decision of this Court was right.

KIRBY J:   Your theory, Mr Tilmouth, must be that if the Court so held, Parliament would be obliged to rewrite the Act.

MR TILMOUTH:   Well, that would be the consequence but ‑ ‑ ‑

KIRBY J:   And provide for the matter to be dealt with in the Federal Court.

GAUDRON J:   It is a novel proposition that we can direct Parliament to enact legislation.

KIRBY J:   But that would be the practical consequence - - -

MR TILMOUTH:   Yes, it would.  But the same result flowed, for example, from the decision of this Court in Wakim and it would be a very simple matter, for example, to invest the ‑ ‑ ‑

KIRBY J:   Do you have to raise Wakim?

MR TILMOUTH:   If one is looking at consequences dictating the likelihood of something being a proper argument, then Wakim is a good example, maybe.

GAUDRON J:   What relief, precisely, did you seek in these proceedings?  Let us go and see what relief you are now seeking because it does not seem to be exactly the same, does it?

MR TILMOUTH:   Well, the relief sought is on page - it was by way of case stated, of course.  Could I just avoid that question for half a moment and answer your Honour Justice Gaudron further.  It would be a simple matter if there was a problem here with judicial power to invest these kind of matters, for example, in the new magistracy established in ‑ ‑ ‑

GAUDRON J:   It may be all very well for what Parliament can do, but I am not in the least bit concerned with what Parliament can, might, might not do. I am concerned with what particular result you say the Constitution requires.

MR TILMOUTH:   If the Court pleases, to answer that question, the one your Honour just put to me before it, on page 22 of the application book one can see the court orders which reflect really what the application was about.  It was a declaration of invalidity, in effect, that the power being exercised under 61(1)(b) and the subsection in 415 which is the equivalent power of the Refugee Review Tribunal, which of course becomes a decision of the Minister, was invalid because it was an exercise of judicial power.  That is what it boils down to.

GAUDRON J:   Yes, now, what relief did you seek in the proceedings?

MR TILMOUTH:   In the High Court proceedings, the original jurisdiction, we sought prohibition and certiorari to follow, essentially because of the Chapter III question again.

KIRBY J:   How would that advance your client immediately?

MR TILMOUTH:   Well, our submission would be that the order of the Minister affirmed by the Tribunal would be invalid.

GAUDRON J:   We have seen any number of cases recently in which a question has been isolated for decision, then one way or another comes to this Court, and you find that it is really quite awkward dealing with the question in isolation.  That seems to me also to be a difficulty in this case.

MR TILMOUTH:   The problem is in this case, your Honour, though, that there was only limited review by other means.

GAUDRON J:   Well, that is a problem in a lot of cases, but when you say there was only limited review, there was only the opportunity for limited review or there was only limited review.

MR TILMOUTH:   No, the opportunity to go through the Federal Court was not taken because that is restricted under 475 and 476, and the only remedy sought were on account of the judicial power argument in this Court.

GAUDRON J:   So your ultimate argument is that sections 65(1)(b) and 415(2)(a) are invalid, in so far as they enable the Minister to refuse a visa?

MR TILMOUTH:   Refuse or grant a visa.

GAUDRON J:   Refuse or grant.  Now, what precisely does section 65(1)(b) say?

MR TILMOUTH:   It is on the page that I indicated earlier, your Honour, page 27 of the ‑ ‑ ‑

KIRBY J:   Just pausing there, the giving or refusing of visas is traditionally an aspect of the Executive Government, is it not?

MR TILMOUTH:   I agree with that.

KIRBY J:   You just say that because of the way that Parliament has enacted this provision in Australia, that it runs into a problem with Chapter III.

MR TILMOUTH:   Yes.  One, because of the change in the expanded subject matter and, two, because incorporation into domestic law.  I should have said refused, by the way, to the answer to your question of Justice Gaudron, because it is only the refusal in section 65(b) which is the operative decision ‑ ‑ ‑

GAUDRON J:   But your argument would be that both are invalid.

MR TILMOUTH:   Yes, indeed.  But if the Court pleases, can I draw the argument to a head in this way?  In Hai’s Case, which is in our materials ‑ ‑ ‑

GAUDRON J:   So if you cannot also grant it, what relief do you really seek in the proceedings that you have brought before this Court and which have been remitted?

MR TILMOUTH:   In the ultimate result, we are seeking prohibition for removal or a stay.  That is the practical ‑ ‑ ‑

KIRBY J:   Where would it lead, that is what her Honour is asking?  I mean, how does it advantage your client?

MR TILMOUTH:   It would leave him in a position where he was still an applicant for a visa ‑ ‑ ‑

GAUDRON J:   There would be no one to whom to apply, would there?

MR TILMOUTH:   That is so, but if the Court pleases, one would hope that Parliament will provide a mechanism as a consequence of the decision, because of the ratification of the Convention, even as an executive matter.  But the other consequence is - I just forget the technical name - but there is a temporary visa, a bridging visa, it is called, which is available while legal matters are being sorted out.  That, I think, is the status of most of these representative people at the moment.

KIRBY J:   Yes, but that requires a grant.  It is not something - your client would be in a legal limbo, would he not?  He has no visa to stay in Australia and, on your theory, the Minister cannot grant one.

MR TILMOUTH:   Only because of the exercise of that power but, in my submission, it would logically follow that something would have to be done, it could not be left.

KIRBY J:   That would not flow from these proceedings to your client, that would flow from any action that the Parliament, in its discretion, decided later to do.

MR TILMOUTH:   Quite.  Or there is room for executive action, I would submit, but as a strict legal matter, of course, it leaves a vacuum.  That is the end result.  Your Honours, can I emphasise that ‑ ‑ ‑

KIRBY J:   I suppose you are entitled to say that after the Boilermakers’ Case there was a huge vacuum but Parliament moved pretty quickly to fill it up.

MR TILMOUTH:   And, as your Honour and Justice Barwick has said, the matter has not really been resolved since.  No bright line has still been defined in this matter.  But can I make this point, bearing in mind I have about two and a half minutes left, that in Hai’s Case, which is in our materials, your Honours, this Court has said that there is a significant change in the two regimes between 22A and 36 in particular.  This Court said that the test is now objective.  It imposes obligations rather than conferring power although it still held the view that it was a condition precedent.

Your Honour Justice Kirby, in Hai’s Case, has said, referring to the change, that the Convention had now passed into domestic law and was incorporated into domestic law, in two separate passages at 783 and 789 of that case.  The other decision, your Honours, which is not on our list but time does not permit me to hand it up, is Thiyagarajah’s Case 199 CLR 343, where this Court also considered the protection obligation provisions and it dealt with, in that case, Article 33 of the Convention and noted in that case that there was significant changes as well between the two regimes and, in my submission, if the Court pleases, that gives emphasis to the fact that we are dealing with quite a different context altogether than we were dealing with in Lim’s Case.  The matter has passed beyond the pure preserve of the executive and has been incorporated into domestic law.  In my submission, the content of the new power ‑ ‑ ‑

KIRBY J:   What does that matter when administrators, all the time, are complying with the law?  We all have to comply with the law.

MR TILMOUTH:   That is true.  The point I make, if the Court pleases, is that the significant change is now, whereas in Lim’s Case there was no existing right because it was purely executive and it was contingent.  There is now a right and a duty to have the matter considered according to law.  Your Honour Justice Gaudron, in Thiyagarajah’s Case ‑ ‑ ‑

GAUDRON J:   I think I was in dissent in that case, was I not?

MR TILMOUTH:   I did not read this bit that way, if the Court pleases, but you did dissent on the scope of section 481.  But what your Honour said at 363 was that there was a duty to consider the application and that Mr Thiyagarajah had a right to have it considered by the Tribunal.  Now, of course that was a different point and it was said over in another context, but it emphasises, in my submission, that the change now is that there is a right recognised in domestic law, by reference to Article 32, of the right to have the determination according to due process of law and the content dictates, in my submission, that it is judicial; an administrative tribunal cannot handle it.

KIRBY J:   It is not traditionally judicial in any other country that I know of.  It may be that in some of the civil law countries it goes to administrative courts, I am not sure.  But in English speaking countries, common law countries, it is executive.

MR TILMOUTH:   Yes.  Absent the human rights considerations of recent times, the Canadian charter, for example, and the English incorporation into the European system, but before then it is quite true that Lim’s Case was the law.  In order to succeed, we have to satisfy the Court that the regime has changed in character, qualitatively and quantitatively, since then, and that is what I have endeavoured to do, if the Court pleases.

GAUDRON J:   Yes, Mr Solicitor.

MR BENNETT:   Your Honours, the ground has changed somewhat since the application was put.  We would submit that when one looks at section 65(1) there is a power given to the Minister, two powers to do one thing or the other if satisfied of certain matters.  One of those is that the other criteria prescribed by the Act have been satisfied.  That picks up section 36(2), which is on the previous page, page 26, and all section 36(2) does is adopt a definition.  It is not correct to say, as my learned friend submits, that it in some way incorporates the Convention as a convention into Australian law, giving it the force of law.  It simply does not.

GAUDRON J:   The Act does not even annex it, a matter of which is of some difficulty frequently when one comes to deal with these matters, but there you go.

MR BENNETT:   Yes, precisely, your Honour.  My learned friend cites your Honour ‑ ‑ ‑

KIRBY J:   There is a cross-reference, is there not?  It does not state in Australian law what the legal obligations under Australian law are, it says that it shall be those “to whom Australia has protection obligations under” this “Convention”.

MR BENNETT:   Yes, but those obligations ‑ ‑ ‑

KIRBY J:   You can only find out what they are by going to the Convention.

MR BENNETT:   Yes, of course, your Honour.

KIRBY J:   To that extent, the Convention has become part of our municipal law, otherwise it is just a non-communicative provision.  You have to go to the Convention.  I think this is a complete red herring myself but I just do not see what you are driving at.  It is quite important that I do.

MR BENNETT:   My learned friend’s submission, as I understand it, is that the Convention has, of its own right, the force of law and, therefore ‑ ‑ ‑

KIRBY J:   So what?

MR BENNETT:   Well, if it does not, your Honour, the ‑ ‑ ‑

KIRBY J:   I know that it may have relevance to what the Court has previously said in Lim, and the difference between this and Lim, but administrators have to apply the law all the time.  I do not think that can change it from an administrative quality to a judicial quality.

MR BENNETT:   No, your Honour.  There is no doubt the administrator, the Minister, must apply the law.  He applies the Act and the Act adopts, from the Convention, perhaps a slightly colloquial phrase, a summary phrase which is not strictly accurate as a matter of internal Australian law, the phrase “protection obligations”, but it adopts that phrase ‑ ‑ ‑

KIRBY J:   It is not strictly accurate because the obligations are owed by countries to the international community or to international law.

MR BENNETT:   Yes.  But there is no way in which Article 32 is adopted and itself given the force of law.  One has to look at it to see what the obligations are in order to see if there are any.  One certainly has to do that but one does not then enforce that obligation in its own right which my friend seems to submit is necessary.  Article 32, in any event, would seem to have been complied with, in that there has been a decision reached in accordance with due process of law.  That is a decision of the Minister which is defined by the Act.

KIRBY J:   If we leave aside this debate that Mr Tilmouth and you seem to want to get us into, and go back to looking at the quality of this decision and seeing whether it fits into the judicial or the administrative box, and allowing that that is often a matter of controversy, a matter of doubt, and that the categories are not absolutely clear, what are the indicia that suggest, apart from tradition, that this has traditionally been an Executive Government activity that suggests that this is in the administrative and not in the judicial box, that it is not Chapter III.

MR BENNETT:   First, your Honour, one starts with the doctrine from cases such as Davison’s Case and Tasmanian Breweries which deal with the Boilermaker’s problem in the grey area by saying that some powers can be judicial if conferred on Chapter III courts and administrative if conferred on administrators.  If one did not have that doctrine, Parliament would have an almost impossible job, because every time it legislated for any decision‑making process, it would have to go through the exercise this Court goes through in the more difficult cases and decide which side of the line it fell on.

So that, if one is in a grey area, one does not really have to answer the question.  The question only arises if one is in the black area or the white area.  If one is in the black area, then it can only be a Chapter III court; if it is the white area, it can only be an administrator - maybe I should reverse ‑ ‑ ‑

KIRBY J:   What puts it into the black area on Breckler and other recent authorities of the Court?

MR BENNETT:   Matters such as punishment go in the black area.  Matters such as the final determination of contractual questions between individuals.

KIRBY J:   Matters such as the execution by the body concerned of the order.

MR BENNETT:   Yes, that is a separate criterion.  That is the Brandy rule.  There is also whether it is based on the application of existing norms to fact situations or whether it is creating new norms ‑ ‑ ‑

KIRBY J:   That is where Mr Tilmouth hones in on the section and on the Convention as incorporated, as he puts it.

MR BENNETT:   That element, on its own, is on his side.

GAUDRON J:   But, ultimately, there has to be some right or remedy in issue.  I mean, that is a sine qua non, is it not?

MR BENNETT:   Yes.  Another one is the ‑ ‑ ‑

GAUDRON J:   What would be the right or remedy in issue in this legislative context?  I mean, a court would not be simply making a bare declaration that a person is a refugee and the court would not have power to grant visas.  The only question would be, is there an obligation in domestic law for the Minister not to ‑ ‑ ‑

KIRBY J:   Refuse a visa.

GAUDRON J:   No, an obligation not to deport.

KIRBY J:   To deny protection.

MR BENNETT:   Well, to fail to give protection, yes, and the Minister is simply asked ‑ ‑ ‑

GAUDRON J:   But he would have no power if the argument was right.  This is the difficulty with this argument, it seems to me.  If Mr Tilmouth’s argument is right, there is ultimately no right in issue.

MR BENNETT:   Your Honour, he is rather like the litigant who appeals against the refusal of an interlocutory injunction and seeks a stay, and on getting the stay says, “Well, that means there is an injunction”.  My friend is a little bit in that position.  He is trying to say, “Well, there is a decision which says that I do not get a visa.  If I set that aside, in some way I have a visa”.  He does not, and it is as simple as ‑ ‑ ‑

KIRBY J:   There is still the need for the interposition of the Executive Government action which is a traditional Executive Government action to grant or refuse a visa.

MR BENNETT:   Yes, and if he is correct, it cannot grant him one.  The way the argument was put below, and the way it is put in the submissions, was that there was power to grant a visa but no power to refuse one.  The absurdity of that position has now been recognised and what is now said is, “Well, there is no power to grant or refuse”.  The problem with that is that relief is totally pointless.  It does not achieve anything.  It does not put my learned friend’s client in the position, even of an applicant.

GAUDRON J:   More to the point, it shows that there could be no right in issue in the court, therefore there would be no judicial proceedings anyway.

MR BENNETT:   Precisely, your Honour, and that is why, in the judgment of Justice Branson, her Honour started, at page 26, by setting out the visa

sections rather than - I am sorry, the effect of….visa.  If your Honour goes to page 26, your Honour will see that.  Section 13(1) says:

A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.

14(1)  A non-citizen in the migration zone who is not a lawful non‑citizen is an unlawful non-citizen.

Then there is power for deportation, and so on.  Now, the only ultimate question for the applicant is does he or does he not have a visa?  He has applied for one and failed to get one.

GAUDRON J:   I think we understand that, Mr Solicitor.

MR BENNETT:   Yes, your Honour, that is the argument.

GAUDRON J:   Yes, Mr Tilmouth.

MR TILMOUTH:   I put four matters in reply, your Honours.  Although my learned friend, of course, is right, Justice Branson founded eventually on Lim’s Case on page 29 and, of course, our argument is that there is the difference that I have endeavoured to point out between the legislation.  If I could address what I would label as a futility argument or, as your Honour Justice Gaudron put it, there is ultimately no right in issue, in my submission, the new right which did not exist beforehand, is the right for a determination of the entitlement to protection according to law.  It might be a procedural right but it is still a different question of whether or not the person is a refugee.  Finally ‑ ‑ ‑

KIRBY J:   It does not seem to lead anywhere in your case, as the
Solicitor-General has said, because it simply leads to some sort of a declaration which is a bare declaration which courts will rarely give.  It does not give you a visa and that is what you need to stay here.

MR TILMOUTH:   But if the Court pleases, there is an interim mechanism through the bridging visa to cater for the situation.

KIRBY J:   Yes, but that too is in the grant of the Executive Government.

MR TILMOUTH:   It is, but in my submission ‑ ‑ ‑

KIRBY J:   It simply demonstrates how, traditionally, and under our law, this is something that is left to the Executive Government.

MR TILMOUTH:   That may be but, in my submission, the Court should look at this with a view to the executive honouring the commitments it has even if they are in international law between sovereign States under the Convention and it would be wrong to assume that it simply leaves a vacuum in the matter with no right to apply.  I understand, as a matter of law, that it leaves a vacuum but it would be wrong to assume that it is not capable of easy remedy.

The final matter, your Honours, on the question of whether this case falls on the black or the white side of the ledger.  On the enforcement issue the analogy has been made with criminal proceedings in the Dietrich situation in the written outline, but ultimately, if the Court pleases, the immediate consequence of the refusal which is the decision of the Minister, whether his own or on review, is that the applicant is detained by an officer of the Minister, he is removed from Australia by an officer of the Minister and, practically speaking, therefore, the enforcement is by the person making the decision which is a classic attribute of the exercise of judicial power.  Of course, the consequences are drastic and the subject matter is very important, in my submission, all of which lean towards the matter being on the black rather than the white side.  If the Court pleases.

KIRBY J:   You have put in this application for special order for costs but we would not normally make anything other than the ordinary order.

MR TILMOUTH:   I understand that, your Honours.

KIRBY J:   Whether it can be enforced, whether it is practical, whether it leads anywhere is a different matter, but so far as the Court is concerned the order would normally be made.

MR TILMOUTH:   Yes.  Well, my learned friend has addressed that in his submissions.  Could I add this:  in the alternative I would ask the Court to consider making an order that distributes the costs equally to all of the represented persons in the schedule to my ‑ ‑ ‑

KIRBY J:   They are not now before us.

MR TILMOUTH:   No, they are on the Court file.

KIRBY J:   We do not make orders against people who are not before us.  That would be quite wrong.

MR TILMOUTH:   No.  That is the only alternative I could put forward, if the Court pleases.

KIRBY J:   We cannot have that.

MR TILMOUTH:   If the Court pleases.

GAUDRON J:   Thank you.

We see no error in the answers or the reasons of the Full Federal Court in this matter.  Accordingly, special leave is refused.  Moreover, we see no reason to depart from the usual practice with respect to costs.   Accordingly, it is refused with costs.

AT 11.53 AM THE MATTER WAS CONCLUDED