Truong - Ex parte MIMA

[2001] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Melbourne  No M14 of 2001

In the matter of -

An application for Writs of Certiorari, Mandamus and Prohibition and an Injunction against THE HONOURABLE PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Ex parte –

TRUONG VAN LUY

Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 MARCH 2001, AT 9.37 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN:   May it please the Court, I appear for the prosecutor.  (instructed by Terence T. O’Brien)

MR S.G.E. McLEISH:   If the Court pleases, I seek leave to appear for the respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Now, Mr Krohn, I have read the papers in the matter and before we get into it too far there is one aspect of it to which I wanted to draw particular attention.  In the draft order nisi in its amended form, which is exhibit TOB7, there is reference in ground 6 to matters of a kind the subject of the matters of Jia and White which are presently reserved for judgment in the Court.  I cannot say to you today when judgment in those matters will be given but, on its face, it would seem that those matters, and the judgment in those matters, would bear directly upon questions of the kind sought to be raised by ground 6.

MR KROHN:   Yes, I accept that, your Honour.

HIS HONOUR:   Now, in those circumstances, what do you say I should do?  In particular, should I today go forward at all in the application or should I wait until the Court’s reasons for decision in Jia and White are published?

MR KROHN:   Your Honour, in relation to that, if I may first make a very brief clarification and an apology to the Court.  If your Honour sees the proposed amended ground 6, the word “actual” in the third line of the ground ought not to be there.

HIS HONOUR:   Yes.

MR KROHN:   The proposed ground is simply that there is a reasonable apprehension of bias.

HIS HONOUR:   Yes.

MR KROHN:   Now, your Honour, having said that, it may be that the judgment of the Court in Jia and White may bear directly on the matter of reasonable apprehension of bias, but it may perhaps incline more to a consideration of the actual bias ground.  I do not know that.  I simply mention that.  The main concern that the prosecutor would have if this matter were adjourned is that he is at present in detention.

HIS HONOUR:   Yes, I understand that.  But let it be assumed we go forward today, let it be assumed further that on going forward you were to succeed in obtaining an order nisi, what effect would the grant of an order nisi have on the continued detention of the applicant?

MR KROHN:   The order nisi of itself would not, your Honour, but the prosecutor seeks a stay on the respondent Minister’s decision to cancel the visa as an interlocutory measure and that is a matter that is addressed by part of the affidavit of the prosecutor’s solicitor sworn and filed yesterday.

HIS HONOUR:   Yes, I saw that.

MR KROHN:   If the stay were not granted, then there would be no effect unless it might be possible – I am not sure about this – for the respondent of his own motion to grant a bridging visa, but that is a matter entirely for the respondent’s discretion and choice.  So without the stay, your Honour, the prosecutor would remain in detention.

HIS HONOUR:   Now, again, let it be assume for the purpose of debate that there is power to grant a stay, the effect of which would see your client entitled to be at large.  That is an assumption that may contain within it several quite large questions, but let that be assumed.  Do you say that I could embark on consideration of the application for stay without first having some basis for assessing likelihood of success?

MR KROHN:   No, your Honour, but given your Honour’s concern about the matters raised in Jia and White ‑ ‑ ‑

HIS HONOUR:   It is not my concern, Mr Krohn.  You have raised it.  Yes.

MR KROHN:   I understand that, your Honour.  There are other grounds advanced by the prosecutor and if your Honour were satisfied in relation to one of those grounds that there were an arguable case, even without considering the proposed ground 6, then there may be the basis for your Honour to grant the stay that is sought.

HIS HONOUR:   Yes.  Dividing the case has its own perils, but in the end it comes to what do you say I should do?  Do you say that I should proceed?  I must say to you that my present inclination would be that I should express no view on the arguability of ground 6 until the Court’s reasons in Jia and White are available for the parties to consider and for me to have the benefit of argument by the parties about what, if any, effect that judgment might have on the issues which it is sought to agitate under ground 6 understood in the form in which you have identified.

MR KROHN:   I understand that, your Honour.  My submission, your Honour, would be that while there has been argument on that point and, if it were available to your Honour, it might be of assistance, your Honour has to deal with an application which has aspects of urgency about it.

HIS HONOUR:   The urgency lies in this stay notion, Mr Krohn.

MR KROHN:   That is so, your Honour.

HIS HONOUR:   Whatever the outcome of this application – if this application fails, the applicant remains in immigration detention; if this application succeeds, that is, if an order nisi is granted, questions of stay, you say, then arise, but the final determination of the issues would then await the outcome of the return of the order nisi.  Now, on no view of the matter is the final status of your client going to be determined for quite some little time, unless, that is, his application for order nisi fails, in which case his status is determined there and then, but adversely to him.

Now, there may perhaps be some further considerations. At the moment it seems to me they do not arise, but there has been argument in the Court in another immigration matter about the operation of, is it, Part 8 of the Act and the Federal Court jurisdiction and, in particular, exactly what is meant by some of the grounds, arguments, some of which, if they were accepted, might lead to some matters hitherto thought to lie only in the original jurisdiction of this Court being fit for remitter to the Federal Court. Those issues which seem to me not to bear directly today on what we should do. They are, however, issues that hover around in the background and affect perhaps more directly when it is that if order nisi were to be granted, it might be returned and where it might be returned.

But it comes to this:  do you say I should proceed to hear and determine the application for order nisi on grounds 1 to 5?  Do you say I should go forward on all of the grounds today?  What do you say I should do?

MR KROHN:   In my submission, your Honour should proceed at least in relation to the grounds other than ground 6.  In relation to ground 6, if your Honour found that there were no arguable case in relation to the other grounds, then I would ask that I might seek instructions on the precise question that your Honour has raised, but in my view the Court should deal with the question of whether there is an arguable case, at least in relation to grounds other than 6.  I do not know what my learned friend may have to say about that.

HIS HONOUR:   Nor do I.  Perhaps I should hear him.  Yes.  Mr McLeish, what course do you say I should adopt?

MR McLEISH:   Your Honour, I would be contending that your Honour could deal with ground 6 because my submission would be that the legislation has relevantly changed since the remarks were made in Jia, which were the subject of ‑ ‑ ‑

HIS HONOUR:   Well, Jia and White was a different character test, I understand that, and that may perhaps present a further difficulty in the way of the applicant.  What troubles me a little is that Jia and White saw argument, at least, on how notions of bias, particularly apprehended bias, intersect with decision‑making of the kind that section 501 in its then form, and I suspect perhaps even in its present form, may raise. But there we are. But you say, what, I should go ahead with the lot?

MR McLEISH:   Yes, your Honour.

HIS HONOUR:   Yes.

MR McLEISH:   In brief, on ground 6 I would be submitting that, firstly, the nature of the remarks in Jia which were found to demonstrate actual bias were to the effect that people with serious criminal convictions were not of good character.  That statement has since been enshrined in the legislation as one of the tests of good character.  So the Minister’s remarks expressing that belief, although they may have demonstrated a closed mind in the view of the Full Court of the Federal Court under the legislation as it then stood, the Minister’s view have now been enshrined in the legislation and so his expressions of belief about the relevance of a criminal conviction are no longer pertinent.

The other point though would be that, whatever the test of bias, whether it is reasonable apprehension of bias or, I suppose in the context of the Full Court something higher, but given that what is alleged in this case is reasonable apprehension of bias, I would be submitting that the material falls far short of an arguable case on that ground.

HIS HONOUR:   Yes, thank you, Mr McLeish.

MR McLEISH:   Thank you, your Honour.

HIS HONOUR:   Well, Mr Krohn, let us proceed then.

MR KROHN:   If your Honour please.  If I might hand up to your Honour an outline of the prosecutor’s submissions.

HIS HONOUR:   Thank you.  Has Mr McLeish a copy of this?  Yes, now he does.

MR KROHN:   He does.  I do not think there is anything which will take my learned friend by surprise, your Honour.

HIS HONOUR:   Yes.

MR KROHN:   Your Honour, I formally seek leave to make submissions in relation to that new ground 6 with that deletion of the word “actual”.

HIS HONOUR:   Yes.

MR KROHN:   If your Honour please.  Also, your Honour, to the extent that it is required, I apply for enlargement of time for the prosecutor to seek mandamus.  It may, in the event, not be necessary as a remedy, but to the extent that it is required, I make that application, that is on the basis ‑ ‑ ‑

HIS HONOUR:   For the moment any application for enlargement, I think, can await the submissions that you make on the substance of the matter.  Perhaps I will hear you first on substance, hear Mr McLeish first on substance, and then if we should come to it, then questions of enlargement might perhaps be touched on.  It may be that it would be useful if Mr McLeish in his answer were to state, without developing them, the points of submission he would make about enlargement.  But for the moment, if you confine your attention, would you, Mr Krohn, to the merits.

MR KROHN:   If your Honour please.  No argument is made in relation to ground 1, the natural justice point, your Honour.

HIS HONOUR:   Yes.

MR KROHN:   In relation to grounds 4 and 5, I turn to those because they are, in my submission, the most immediately apparent.  Does your Honour have a copy of the Migration Act?

HIS HONOUR:   Yes.

MR KROHN: If your Honour turns to section 501H(1), “If a decision is made under section 501(1) or” – I beg your Honour’s pardon. I am looking at 501G. I am sorry, your Honour.

HIS HONOUR:   Yes.

MR KROHN:  

If a decision is made under subsection 501(1) or (2) –

and that is the situation here, your Honour, then:

the Minister must give the person a written notice that:

(c)  sets out the decision; and

(d)  specifies the provision under which the decision was made –

and, importantly:

(e)  sets out the reasons (other than non‑disclosable information) for the decision;

Now, your Honour, there is a document which is headed “Notice of Cancellation”.  That is exhibit TOB2.

HIS HONOUR:   Yes.

MR KROHN: The actual heading at the beginning, “ISSUES FOR CONSIDERATION FOR POSSIBLE VISA CANCELLATION UNDER SECTION 501(2) OF THE MIGRATION ACT 1958”, and in form this is a minute or memorandum which has been prepared for the use of the respondent Minister. If your Honour turns to the last page – perhaps I note in passing, your Honour, that in my submission Parts A, B, C and D of that are all in a non‑directional fashion. There is reference to things that are adverse to the prosecutor and there is reference to some things that perhaps may be in his favour. Then there is on the last page heading, “PART E: MINISTER’S DECISION”. That is the only part of the document in the first person and it says very simply:

I have considered all relevant matters including an assessment of the character test within the meaning of section 501 Migration Act 1958 and have decided that -

and then there are a number of options and the Minister has agreed to the first and third of those and not agreed to the others – at least they are struck through in that fashion – and then there is a signature. Your Honour, in my submission, there is nothing in that document which can possibly amount to reasons within the provision of section 501G of the Act. The Minister is obliged, in my submission, your Honour, to weigh up considerations in a particular way and to determine which things, and to explain which things, carried weight with him, which things perhaps he thought were not so important, which things might have inclined him in a particular way but on balance he decided not to follow that. That would be an explanation of reasons which the prosecutor could understand so that he could understand how it was that the Minister arrived at this particular result. By way of illustrating ‑ ‑ ‑

HIS HONOUR:   Just before we part from that point, the obligation is to set out the reasons for the decision.  The decision relevantly, I assume, is a decision under 501(2) to cancel a visa.

MR KROHN:   That is so, your Honour.

HIS HONOUR:   The grounds for engaging 501(2) are specified in (a) and (b), reasonable suspicion “that the person does not pass the character test” and the person not satisfying the Minister “that the person passes the character test”.  “Character test” relevantly, so far as engaged in this matter, is, is it not, the bare fact of sentence to a term of imprisonment of 12 months or more?

MR KROHN:   That is so, your Honour.

HIS HONOUR:   Those being the relevant provisions of the Act which were engaged, what are the reasons that you say the Minister should have, but did not, set out in the decision record?

MR KROHN:   I can illustrate that, your Honour, by way of example, merely that the Tribunal’s decision to set aside the deportation order in this case and also the ministerial direction.  Perhaps if I might just pick up the point your Honour has made.  Your Honour does correctly point out, with respect, that 501(2) sets out grounds for cancellation, but if your Honour has regard to 501G, the distinction that is made there between (d) and (e), that is, (d) he must specify:

the provision under which the decision was made . . . ; and

(e)  sets out the reasons –

that, in my submission, supports the usual distinction between what might be the barest statement of the conclusions of a decision‑maker and the reasons which may be quite ample.  If your Honour turns perhaps, first, to exhibit TOB10.  This is the Minister’s own direction to decision‑makers in relation to visa refusal and cancellation.  I do not propose to take your Honour in detail through all of it, but if your Honour turns to page 2, there is heading “PRELIMINARY” and it says:

This Direction consists of two parts.  Part 1 provides directions on the application of the Character Test . . . If the non‑citizen does not pass the Character Test, decision‑makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations.  Part 2 provides directions on what these considerations are and the weight to be given to them.

Then if your Honour does turn to Part 2, that is on page 8 of the direction – I am sorry, there is a large number 38 at the bottom, which bears no relation to this.

HIS HONOUR:   Yes, I have it.

MR KROHN:   Then paragraph 2.2:

The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision‑maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.23.

Then a quite detailed instruction is given:

Decision‑makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.  Decision‑makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

So that what is required is not simply to have attention to relevant considerations, but to engage in a particular kind of weighted balancing act such that it is necessary for a decision‑maker in deciding the matter to identify what primary considerations are involved and to what degree.  The relevant primary considerations in this instance were protection of the Australian community, set out at 2.4, and that is given three sub‑parts in this direction ‑ ‑ ‑

HIS HONOUR:   The “seriousness and nature”, “likelihood” of repetition and “general deterrence” being the matters referred to at Part D, paragraphs 11, 15 and 18 and the subsequent paragraphs in the decision record.

MR KROHN:   They are referred to, your Honour, but, with respect, what has not been done is what was done, and stated to have been done, for example, by the Administrative Appeals Tribunal when it applied the same – it may have been an earlier version, but substantially the same direction when dealing with the deportation order.  If your Honour turns to the second – the major part of the document is a recitation of relevant considerations, but the conclusion, for example, the second‑last paragraph page 15:

Although he has made no contribution to Australia to date, potentially he has better prospects in Australia than in Vietnam with work and accommodation immediately available to him upon his release which will enable a fresh start to be made.

HIS HONOUR:   You are reading from, what, the AAT?

MR KROHN:   I am sorry.  Yes.  It is TOB9, your Honour.

HIS HONOUR:   Yes, I have that.

MR KROHN:   Page 15, the last page.

HIS HONOUR:   Yes, I have that.  Yes, I see that.

MR KROHN:   Also satisfied “cause considerable distress”.  Then the statement is made, which explains the whole of what has gone before, in the last paragraph, that:

Having given careful consideration to the safety and welfare of the community taking into account the circumstances surrounding the deportable offence and in view of the evidence that the risk of recidivism is minimal, I have come to the conclusion that the applicant should be given the opportunity (probably his last chance) to reestablish his life in this country and make a contribution.

HIS HONOUR:   Now, what is the difference between that style of document and the decision record that is exhibit TOB2?

MR KROHN:   That it is not possible reading TOB2 to know just which factors in the mind of the Minister had which weight and what it was that tilted the balance.  It is clear from reading the Tribunal’s decision that what it was that tilted the balance was, after rehearsing the evidence, the Tribunal’s view about rehabilitation and the risk of recidivism being minimal, there is a conclusion reached – there are antecedent conclusions reached in the course of that document about the risk of recidivism, but the further difficulty with the document which was signed by the respondent Minister is that all of the material set out before Part E would appear to be a summary prepared by somebody else and ‑ ‑ ‑

HIS HONOUR:   Plainly so and the fact that the Minister acts on it may, it might be thought, constitute the Minister’s adoption of those and only those as the reasons for the Minister’s decision, but what more does the Minister have to do than is done in this document?  You say attribute weight to various considerations.  Here we have a document which speaks in terms of “primary considerations, paragraph 10 and following, “Other considerations, paragraph 22 and following.  Some matters are set aside as irrelevant such, for example, as those under the heading “The best interests of the child”, paragraph 21, “There are no children”.  Account is taken, so it seems, of refugee obligations.  What more is the Minister to do?

MR KROHN:   The Minister, your Honour, is required to consider whether, for example, the issue of hardship that is considered as another consideration, taken, for example, with the rehabilitation of the prosecutor, should be taken to outweigh specifically the interests of the Australian community and protection, for instance, and, further, your Honour ‑ ‑ ‑

HIS HONOUR:   That is a ground of relevant or irrelevant considerations or it is ground of unreasonable result.  At the moment focusing only on the requirement – and I understand there are other grounds to which we will come – but focusing for the moment only on the requirement of 501G(1)(e), what do you say is deficient, or arguably deficient, about the document which is exhibit TOB2?

MR KROHN:   It is not possible, your Honour, for the prosecutor to know precisely which considerations in that long and detailed list in the Minister’s direction were decisive, which ones were accepted or ignored or regarded as of little weight, which ones were regarded as going in his favour or against.  There is perhaps the somewhat ambivalent factual situation of relations between the applicant and his sister at one stage, and I will, when dealing with the relevant considerations, take your Honour to the fact that there was more said and more available in the Tribunal’s reasons, for example, that were also before the Minister about contact with the family and support from the family.

It is also notable, your Honour, it is not possible to know from this document whether the Minister considered issues of rehabilitation from the drugs and other matters in relation to the issue of recidivism of the offending.  Those matters are not set out under that heading.

HIS HONOUR:   Now, at paragraph 15 of this document we have some discussion of that and we have a note which reads “See Attachment A2”.  Do we know from the evidence what Attachment A2 may be?

MR KROHN:   I do not know that, your Honour.  I do not know if my learned friend does.

HIS HONOUR:   But it was not at least part of the documents that was given to the applicant as part of the decision record, is it?  Is that the case?

MR KROHN:   I do not know that, your Honour.  There is some lack of clarity about that.  My instructor was not at that time the prosecutor’s solicitor.

HIS HONOUR:   I understand that.

MR KROHN:   It is just not clear precisely what may have been there.  Your Honour, this is a very good illustration because in the Tribunal decision, if your Honour sees the matters that are set out in TOB2 at paragraphs 22 and through to 27, 28 and 29, those matters are dealt with simply under the heading “Other considerations”, so they are the things that might be put in the scales against “primary considerations”.

HIS HONOUR:   But whatever else this procedure is, Mr Krohn, it is not merits review.

MR KROHN:   I accept that, your Honour, and I do not say anything about the merits there at all, but I simply say those were matters which the Tribunal considered and, in my submission, properly, but the issue just what was the process of reasoning of the Minister, the Tribunal considered those matters also specifically under the heading of “The risk of recidivism”.  Now, your Honour, that is an important point because if these matters that are set out in the Minister’s memo were dealt with by the Minister only as “Other considerations” as the heading would seem perhaps to suggest, then that is a quite different kind of balancing exercise possibly that the Minister is engaged in from what he would have done, or perhaps what he did, if he considered those also in assessing the risk of recidivism.

HIS HONOUR:   Let it be assumed that is so for the moment.  If anything, that reveals some failure to take account of relevant considerations or it reveals, at most, a decision so unreasonable no decision‑maker could reach it.  The fact that different weightings might be given by different decision‑makers to the various competing factors at issue in this case does not, at first blush, seem to me to raise any judicial reviewable ground.

MR KROHN:   Your Honour, I do not advance the question whether more weight was given to this or to that and I accept ‑ ‑ ‑

HIS HONOUR:   Yes.

MR KROHN:   What I advance is that if the Minister was obliged, for whatever reason – if the Minister were obliged, for example, to consider the matters in connection with rehabilitation from drugs under the heading of “Risk of recidivism”, if the Minister were obliged to do that, then from the document TOB2 signed by the Minister we have no clear way of knowing whether that is what the Minister has done.  He may have done that.  He may not.  He had before him two documents, and probably other material, but he had this memo prepared for him which did not include drug rehabilitation under risk of recidivism factor and he had the AAT decision which did.

It may be that the Minister did one of those two things or something different, but it is precisely because the prosecutor does not know what it was that the Minister did with those matters that the prosecutor cannot understand precisely what was the ultimate thing that carried weight, the ultimate perception of his situation by the Minister.  It may be that the Minister had a view that any drug offences were so serious that virtually nothing would outweigh it.  Maybe the Minister did not have that view. 

The Minister might have had a view that the one instance of the issue of an assault with a weapon where there was a fine, I think, of $500, it was an altercation in a traffic dispute, it may be that that bulked large in the mind of the Minister.  We do not know.  That, your Honour, is precisely the point of a complaint about compliance or non‑compliance with 501G(1)(e).  Certainly some – and under the other heading I will come to it – of the relevant considerations are set out in that memo, but, with respect, your Honour, it seems to me impossible to say that that document can make it plain to the prosecutor just what was the logical chain, what was the process of reasoning adopted by the Minister to come to his conclusion, particularly when there were, in the example that I have given about the drug rehabilitation, two different methodologies, both of which were before him.

In fact, the Tribunal decision was before him because it is identified on page 1 of TOB2 as Attachment A1.  So that was material that we know that the Minister had.  So that on the face of it, your Honour, the Minister has not just one memorandum, but he has at least two different approaches to the situation of assessing the character and a discretion under the Migration Act, and there may have been other things that weighed in the Minister’s mind.  It is simply impossible to know.           Now, your Honour, I note that 501G(4) says:

A failure to comply with this section in relation to a decision not affect the validity of the decision.

But, your Honour, that is not a reason for saying that the decision should not be set aside for failure to comply with it.

HIS HONOUR:   What is its purpose then?

MR KROHN: Its purpose is to prevent - particularly given that a decision under 501 may very quickly determine somebody’s stay in Australia and their legal status, it is to prevent any argument that action taken by the Minister or by officers of the Department after a decision under 501 cannot later be said to have been invalid with any of the consequences of that, so that it was an unlawful action to take somebody into detention, for instance. I know that there are a number of different provisions of the Act which deal with reasonable belief and suspicion, but there is a significant difference between saying that an act is invalid or void ab initio and something which perhaps may be corrected or set aside on review.

HIS HONOUR:   Yes.

MR KROHN:   Your Honour, in a related area of the law perhaps, the decision of the Full Court of the Federal Court in assessing the importance of the obligation on the Refugee Review Tribunal to give reasons, that the Full Bench of five Judges, the majority in that case of four Judges, came to ‑ ‑ ‑

HIS HONOUR:   This is Singh, is it?

MR KROHN:   That is so, your Honour.  I apologise, your Honour, I do not have the citation, but I will check that.  I think it was 30 June ‑ ‑ ‑

HIS HONOUR:   Singh is now in the Federal Court Reports.  I think it may be 98 FCR, but ‑ ‑ ‑

MR KROHN:   It is in the Federal Court Reports, your Honour.  I apologise.  I will get that.  But by way of illustration simply the Full Court in that case, assessing the obligation under section 430 to give reasons, says that the purpose of that and its importance is so that an applicant, particularly one who is not successful, and also so that the Minister and the society can know how it was that the Tribunal, in that instance, comes to its decision, and one of the reasons for that is so that the person affected by the decision can understand and know whether there is any reason or any basis for any recourse in law against it.

HIS HONOUR:   A possible point of view about that kind of issue for these matters were debated in I think it is Yusuf and Israelian’s Cases, again, reserved in the Court.  A possible point of view is that the reasons which the Tribunal gives, or in this case, the document which the Minister acts on, are to be taken as an exhaustive statement of the matters that the Minister or Tribunal concerned has taken into account, that if the statement reveals irrelevant considerations or failure to take account of relevant considerations then judicial review will go.  But that is the principal purpose for the document of the kind with which we are here dealing or of which section 430 speaks.

MR KROHN: Your Honour, with respect, I accept what your Honour says about the examples of relevant or irrelevant considerations, but there can be other errors and the direction which is TOB10, to which I have taken your Honour, is a direction issued by the Minister pursuant to section 499 of the Act which empowers the Minister to give directions – this was a provision that was introduced by a 1998 amendment – and the document to which I have taken your Honour is headed “DIRECTION UNDER SECTION 499(1)”.

HIS HONOUR:   And is a document which, in fact, was not engaged in this case, is it, the Minister having himself exercised the power?

MR KROHN:   It was not before the – it must be taken at the least, your Honour – it is a direction by the respondent.

HIS HONOUR:   But not to himself.  It is a direction to delegates, tribunals and the like, is it not?

MR KROHN: It is a direction “to a person or body having functions or powers under” the Act.

HIS HONOUR:   Yes.  Anyway, perhaps nothing may turn on this.  Yes.

MR KROHN: Well, your Honour, that is section 499(1) and the point is that this very detailed instruction on assessment of considerations and the weighing of them, in my submission, is what is required to be undertaken by the Minister and that because integral to it is not simply having regard to different matters, but weighing them in a particular way and within certain limitations, the document which the Minister has given, the cancellation of visa notice, falls far short of any explanation of the reasons which the Minister, in my submission, was required to give. So, your Honour, that is the prosecutor’s submission in relation to the arguable question raised by grounds 4 and 5.

HIS HONOUR:   Yes.

MR KROHN:   Your Honour, turning to ground 3, unless your Honour desires me to address any further issue in relation to those two grounds.

HIS HONOUR:   No.

MR KROHN: The failure to take account of relevant considerations. I have already indicated to your Honour that the ministerial direction sets out relevant considerations. In my submission, they are relevant, first, because, in my submission, they do bind the Minister pursuant to section 499(1). Having given the direction, and specifically having given a direction which is required to be laid before each House of the Parliament, there is a particular seriousness in that direction and the Minister’s own concern, and it would appear Parliament’s concern, for certainty in decision‑making, must require that, oddly perhaps, the Minister is obliged to follow his own direction unless he gives a different one.

HIS HONOUR:   Which of the matters listed in document TOB10 do you say was not taken into account?

MR KROHN:   The first point is, if your Honour turns to paragraph  2.6(a) of the direction, there is a distinction made in those three dot points between different kinds of drug‑related crime.  There is:

drug‑related crime for financial gain –

then over the page there is:

non‑citizens who have sought to profit from the import or supply of drugs –

and then there is another point:

offences involving illicit drugs of dependency or addiction –

They are stated as examples of offences to be considered by the government to be very serious, but in the memo that was provided to the Minister, document 2, all that is said at paragraph 13 is simply that after quoting an extract from paragraph 2.6 of direction 17, that:

Mr Truong’s conviction on 10 October 1997 and sentence to 16 months imprisonment may be viewed as serious.

There is nothing which is said there concerning the kind of serious drug offence that it was which was discussed extensively by the Tribunal in the earlier deportation review and it is clear from what was said there that there was at least strong evidence, which the Tribunal accepted, that the drug abuse by the prosecutor was at the lower end of the scale.  If your Honour turns to document 9 - - -

HIS HONOUR:   I understand that.  Could you state what it is that you say is the consideration that is not taken into account?

MR KROHN:   The first point, that the prosecutor’s drug offences were at the lower end of the scale and they were drug‑related offences undertaken solely in connection with his own habit and a habit which he came to accept he had to break from and which he did break from.

HIS HONOUR:   Now, 2.6(a) in the second dot point refers, amongst other things, to:

profit from . . . supply . . . motivated by their own need for illicit drugs ‑ ‑ ‑

MR KROHN:   That is, indeed, the second point, yes, your Honour, and I accept that that is there, but 2.6, in my submission, by giving examples, indicates that it is a relevant consideration, yes, to consider the seriousness of the offence but also to consider the distinction that there may be between different patterns of offending.  Perhaps that is all that I would take your Honour to there.  The reference in the Tribunal decision, document 9, pages 7 and following, the Tribunal itself noted that the drug offence was very serious within the terms of the direction, the equivalent provision.  So the Tribunal took that as its starting point, but the Tribunal, as an example, considered the character of the drug‑related offence history of the applicant.

HIS HONOUR:   And this man was selling to feed his own habit.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Yes, I understand that.

MR KROHN:   Your Honour, the next point I have foreshadowed, that is, that in dealing with the issue of risk of recidivism in assessing one of the primary considerations, at that point, in my submission, the Minister was obliged to consider those matters which have been listed just as “Other considerations”.  They are specifically matters that are dealt with – I am sorry that it involves your Honour going between two document – pages 9, 10, 11 and 12 of document 9.  That, in my submission, illustrates relevant considerations on the same facts which the Tribunal took into account in assessing the risk of recidivism.  Your Honour, a number of those are not dealt with at all in the document 2, which was signed by the Minister.  I think there was one reference in paragraph ‑ ‑ ‑

HIS HONOUR:   What is the best example you have of something not dealt with in TOB2 that was dealt with in the AAT reasons?

MR KROHN:   The role of the prosecutor’s sister.  Your Honour, the Tribunal dealt in detail with the support which the prosecutor’s sister would be able to give him and the connection with the sister, the history of that relationship, reasons why at first there may not have been very much contact between them, then the support, the later understanding, that there was evidence about what she was willing to do and provide by way of accommodation and so on, and those were matters which certainly in the Tribunal’s summary were rightly considered by it to be relevant to the issue of rehabilitation and risk of recidivism and protection, therefore, of the Australian community.

Your Honour, to the extent it is dealt with, it is dealt with in a way which gives only part of the picture in the document signed by the Minister in paragraph 15.

HIS HONOUR:   Yes, I have read 15.

MR KROHN:   Yes, your Honour.  All that is rehearsed there is that there is just:

His sister advised the Department she had little contact with him and only saw him if she bumped into him in the street.

HIS HONOUR:   As I say, I have read it, Mr Krohn, yes.

MR KROHN:   I beg your Honour’s pardon.  The other particular matters – but the sister is the most clear – were the reports that are set out pages 9, 10 of the Tribunal decision.  There is a reference to a Mr Jordens from Jesuit Social Services, a Mr Nguyen.  The Minister’s memo or the memo for the Minister makes reference to a clinical psychologist who is not named.  That would appear to be a reference to the Mr Healey on page 11 of the Tribunal decision.  If that is the case, then, in my submission, it should be inferred that the Minister has just not considered any of those relevant matters dealt with on pages 9 and 10.  If that is a chronological selection, then it would appear that under the heading of recidivism the memo does not offer to the Minister anything prior to that.  The issue of employment as well, your Honour, in my submission.

The reference is made to some of these matters in paragraph 15 of the Minister’s memo but only in the context of what it was that the psychologist said.  So, your Honour, on the basis of those matters, in my submission, there are very significant and important things which tend to give a quite different picture, or from which a quite different picture might be taken by a decision‑maker, which have, on the face of the document, apparently not been considered in relation to the assessment of recidivism.

Your Honour, that is extremely important because, as your Honour is aware, the direction and the approach of this memo proceeds on the basis that there are primary considerations.  You come to a conclusion about the primary considerations and then you look at other things.  If you do not look at the other things, including all of this pattern of rehabilitation, of offer of work, of assistance from the family, in connection with the primary considerations, then, in my submission, a quite different result may follow and for that reason, in my submission, there is an arguable case that relevant considerations have not been taken into account.

HIS HONOUR:   Yes.  Now, is that ground 3?

MR KROHN: That is ground 3, your Honour. I simply note – I do not recall whether I did this before, but it is obvious that the memo presented to the Minister, by making reference to the direction, the ministerial direction No 17 at document 10, for example, paragraph 13 of document 2 quotes from direction 17. The suggestion there that the – even if your Honour does not accept that the effect of section 499 compelled the Minister to have regard to it, it would appear that the Minister has accepted or has at least not objected to the proposition that what he is engaged in is the same exercise as is set out in precise detail in direction 17 and so, even without the force of 499, in my submission, the precise, exact weighing and balancing considerations in direction 17 were relevant considerations for the Minister in making this decision as he himself devised it and given it and tabled it in Parliament.

Do I take it that your Honour does desire then to proceed with ground 6, the reasonable apprehension of bias?

HIS HONOUR:   Yes.

MR KROHN:   In relation to that, your Honour, there are essentially four matters.  They are deposed to in paragraphs 12 to 15 of the affidavit of Mr O’Brien sworn yesterday.  They are the Jia Legeng and the AAT matters.  The statements quoted there are found in the report of Jia.  So that, in my submission, is 1997, the Minister in 1997.

Then document 5, your Honour, exhibit TOB5, that is a copy of the Hansard report of the Minister’s second reading speech in relation to the Bill which amended the character provisions.  I apologise that the first two pages of that copy are small and not clear.  If your Honour turns to page 1232 of the Hansard report, the third A4 page ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.

MR KROHN:   ‑ ‑ ‑ the second‑last paragraph.  Under the heading, “Minister’s power to intervene to set aside Administrative Appeals Tribunal decisions” the Minister in his second reading speech said:

Over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations.  The AAT has found a number of non‑citizens who have been convicted of very serious crimes to be of good character, and has ruled that they should be granted visas.

Then he reviews some particular cases.  Then the last sentence of that paragraph, the last couple of lines:

those decisions about which I have spoken have alarmed the community, and I might say that the community, when they are aware of these decisions, hold the government and not the AAT responsible.

It is essential that the minister, acting personally, have the power to intervene and to set aside such decisions in the national interest.

Now, your Honour, I accept that the Minister is there primarily talking about the provision that was later enacted as section 501A.  However, in my submission, it indicates also that the Minister continued to be of the view that, without using it as a term of art, in general terms non‑citizens who have been convicted of very serious crimes to be of good character, those AAT decisions concern and disturb the Minister and he objects to them and within the terms of the present ministerial direction drug offences are described precisely in that phrase, “very serious”.

Then the fourth matter, your Honour, was what is reported to have been a statement by a spokesman for the Minister.  That is exhibit TOB6.  The spokesman is not named but he is reported to have been a spokesman for Mr Ruddock.  It is the second page of TOB6, the right‑hand column, then the fourth paragraph:

A spokesman for Mr Ruddock said the law was clear:  permanent residents sentenced to jail for 12 months or more are “automatically looked at (for deportation); the law requires that to happen”.

The first point in passing there, I am not saying that that is necessarily the statement that the Minister would say that the law requires that to happen, but it should be noted that a discretion is given under section 200. There is no requirement for the Minister to do anything about it. Then the next paragraph, in my submission, is more important:

The spokesman said the minister was concerned by –

and then there is a quote from the spokesman –

“the tendency of the Administrative Appeals Tribunal to overturn some of these deportation cases and he has, in quite a few cases, taken the decision to prevent them going to the AAT so they’re not appealable.  In some cases people with serious criminal backgrounds have had cases overturned”.

Now, your Honour, there are a number of ways that the Minister can prevent a case going to the AAT and one of them is for the Minister personally to exercise the power under section 501.

HIS HONOUR:   Yes, I am familiar with that.

MR KROHN: There are other ways, but that is one way and, in my submission, in the context of a case where it would appear from the Department’s own material that the Minister dealt with the exercise of section 501 discretion on the basis only of material that was before the Tribunal when it dealt with the deportation case and given the Minister’s, in my submission, consistent from 1997, 1998 through to 2001 attitude to what are very serious crimes and it would appear that from the Jia Legeng issue, if you have been sentenced to a term of imprisonment, then that is a matter of bad character, more recently very serious crimes, drug offences.

Given that the Minister has a discretion under the Act, the reasonable bystander looking at this may well have an apprehension that this particular Minister has a view that if you have been sentenced to more than 12 months or if you are a drug offender or perhaps if there has been a deportation order overturned by the AAT, that if there is then a consideration under section 501, that the Minister may not approach that with an open mind exercise of discretion.

HIS HONOUR:   An open mind on what issue?  What is the issue that the reasonable bystander might consider that the Minister will not give attention to?

MR KROHN:   That the Minister would not properly weigh up the relevant considerations for the exercise of any discretion whether to cancel the visa or not.  The Minister having a discretion is obliged to exercise that discretion lawfully and including - by reference to relevant considerations.  The Minister has specified publicly and tabled in Parliament what those considerations are and a very large part of the matter to which the Minister is required to have regard is to do with things that might, perhaps in some cases, balance somebody who has previously had, say, a long prison term or has had at some stage some serious involvement with drugs or other crime - drug‑related crimes or other crimes.

It is precisely in considering whether the Minister – in looking from the outside at the Minister weighing up his discretion, having regard to considerations in which there are issues about past offences and criminal conduct, but also questions of rehabilitation and so on, in my submission, on that material there is at least an arguable case that there is a reasonable apprehension that looking from the outside this Minister, who has expressed vigorously and consistently views about people who should not be in Australia, people whom the Australian community expects to be removed ‑ ‑ ‑

HIS HONOUR:   Let me take it away from the facts of this case and deal with it at a hypothetical level.  Assume for a moment a minister who, under this legislation, announced publicly and repeatedly that, “It would really need to be a very, very extraordinary and special case before I, the Minister, decide to allow someone who has been sentenced to more than 12 months to remain in this country.”  Would you say that there was from that statement a reasonable apprehension of bias?

MR KROHN:   Yes, your Honour, given the structure of the ministerial direction itself, which does not set that kind of test or limitation.  All that the ministerial direction requires is, first, the first part, “Do you pass the character test or not?”  Answer, “No.”  All right.  What is involved then?  A balancing of primary considerations to be given great weight and other considerations, not one of which alone could outweigh a primary consideration, so that the lawfully required exercise does not involve saying, “It would have to be a very extraordinary case” – I am sorry, I apologise if that was not your Honour’s word.

HIS HONOUR:   Near enough.

MR KROHN:   But that is a quite different thing.  To say that would be to say that I start from the assumption that anybody who fails the character test, save in the most unusual case, cannot possibly warrant the exercise of discretion.  There is nothing, in my submission, in that ministerial direction, nor even if the ministerial direction did not exist, in my submission ‑ ‑ ‑

HIS HONOUR:   You see it seems to me that your point may amount to a point that there is an apprehension that the Minister will not exercise the statutory discretion with an open mind which gives due weight to the matters in the ministerial direction.  That is a rather more confined proposition than that with which we began.  What troubles me – I say this so that you may deal with it – about the importation of apprehended bias notions into ministerial decision‑making is, first, the decision‑maker is a politician, the statute requires that the decision‑maker be a politician, who is subjected inevitably to what generally are described as political influences, is subject to matters such as cabinet solidarity, party room pressure, the like.  I do not stay to consider what influence talkback radio may have in these matters.

MR KROHN:   I understand that, your Honour.

HIS HONOUR:   Let us put that aside.  If the legislature gives the decision to a minister, may the Minister properly take to account what he or she sees to be the then prevailing view of the public?  Now, the Minister may be right or wrong in assessing the prevailing view of the public.  We all understand that problem.  But where lies the apprehension of bias in a minister who is nominated as the statutory decision‑holder saying, “Listen, I am a minister.  I listen to the electorate and the electorate is telling me X”?

MR KROHN:   Your Honour, if I might deal with what your Honour has put as two points.  I take your Honour first to say the legislature has given the job to a minister, a politician, and then your Honour specifically asked a separate issue, may he take account of prevailing view of the public.  Taking the first point, the first point is that it is not a rare case that Parliament confers upon a minister the obligation to make a discretionary decision.  I cannot tell your Honour how common it may be and ‑ ‑ ‑

HIS HONOUR:   Surprisingly, not very.

MR KROHN:   ‑ ‑ ‑ it may be even perhaps less common that it is a decision which would have a life‑changing effect on a person but, in my submission, your Honour, precisely because this is a kind of life‑changing decision, the nature of the discretion is manifestly very important and it is important to the Minister, whoever he or she may be, that the exercise of the discretion be carried out in a way which is seen to be fair and perhaps even at a political level, if I might say, your Honour, perhaps there are balancing pressures.  There may be, indeed, pressures of immediate policy and desire to carry the government’s views into effect.  There is also a politicians desire perhaps to have the reputation of being fair and careful in the exercise ‑ ‑ ‑

HIS HONOUR:   But that is politically accountable, not legally accountable, is the underlying issue of principle.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Perhaps these are principles that we need not even attempt to resolve.  The immediate question is:  is the point arguable?

MR KROHN:   Your Honour, in my submission, the fact that it is a minister and a member of cabinet does not affect the availability of the point.  Given that the discretion is a discretion to exercise a jurisdiction, it affects the rights of individuals.  Parliament has provided for, if you like, the ordinary day‑to‑day way out for the Minister that the Minister may, if he or she sees fit, delegate this power.  He does not have to.

If the Minister chooses not to delegate the power in some instances, especially because one consequence is that his personal decision is not reviewable by the AAT, then Parliament by making that provision has said, “Yes, there may be cases where expedition is required or there could be other good reasons of State why the decision should be taken personally and not reviewed on merits”, but because that does not have to be done in that way, if the Minister chooses to do it in that way, then all more the reason, in my submission, why his judgment on the case should be considered to be an administrative decision which is to be weighed in the usual way and not with any lesser standard.

In relation specifically to taking account of prevailing view of the public, perhaps the appropriate thing and what it would appear that at least on one occasion, and I would think on more, that the respondent has done, is that he has done that and he has done it formally and through the Constitution by asking the Parliament to make laws, or to changes laws, in a way that gives better effect to what is seen to be the will of the Australian community. The example there was one of the changes effected by that Bill in 1998 was specifically to give the Minister what he asked for, which was the power under section 501A specifically to set aside a decision of the AAT. So that is an example, your Honour, of a person in the position of the Minister dealing with strong public pressure.

Perhaps just to take that example and scenario a little further within the limits of the Constitution:  if a Minister is unable to persuade the legislature to make a change in the law to take effect of what the Minister perceives to be public view, then in that circumstance there, in my submission, is no justification at all for the Minister to say, “Well, I can’t get my way in Parliament, but never mind, I know what to do if any of these people come before me.”

Now, the prosecutor is not saying that the respondent is doing that, but the prosecutor is saying that given the respondent’s public and consistent statements, in my submission, there is an apprehension that he does not approach the exercise of his important and life‑changing discretion with the appropriate freedom from bias.  Unless your Honour desires, I do not think I can take anything further on that point.

HIS HONOUR:   Yes.

MR KROHN:   Perhaps simply that the initial starting point, the starting point identified in Jia, which was later found by two Judges of the Full Court to amount to actual bias, were statements, including the statement that if you have a criminal conviction with a sentence of imprisonment – I think that is correct – that that demonstrated not of good character.  Now, there are two – perhaps this, your Honour, that the Minister said, “Well, I am not getting this through in the courts so I asked the Parliament to change the law and to say if you have had a sentence of imprisonment for more than 12 months, not of good character.”  That is quite right, proper and good.  There is nothing reprehensible about that, but when the Parliament, and it would appear at the Minister’s request, provides a power for an exercise of a discretion and when the Minister gives directions about how that is to be carried out, then above all other people, it is arguably more important that the Minister should exercise the discretion palpably and transparently free of bias than that any delegate should do so.

So, your Honour, those are the submissions in relation to the apprehension of bias. In my submission, there is an arguable case there. The remaining ground is that the decision was unreasonable and, as I have noted in the outline, at page 3, it is not open to the prosecutor, as I understand the law, to argue that there is anything unlawful about the exercise of the power under section 501 on the same material as the deportation order was set aside, and that is the case Minister v Gunner, and so the prosecutor does not argue that, but that in the circumstances of this case - the deportation order was made on 21 September 1998.  It was set aside ‑ ‑ ‑

HIS HONOUR:   And that was made under what section?

MR KROHN: Section 200, your Honour.

HIS HONOUR:   Yes, thank you.

MR KROHN:   I beg your Honour’s pardon.  I should verify that.

HIS HONOUR:   I think that is right.

MR KROHN: Yes, your Honour. It is exhibit 8 and it is headed “DEPORTATION ORDER FOR SECTION 200 OF THE MIGRATION ACT 1958”. On 12 March 1999 that was set aside. The prosecutor then resumed his life and had employment. The cancellation notice was signed by the respondent on 15 May 2000. That is more than a year after the deportation order was set aside.

Now, I accept that no additional information was submitted to the respondent by Mr Truong in connection with the cancellation and I am not pressing the denial of natural justice ground.  All that I say is that there were a combination of causes for that.  However, the fact remains that the Minister made the cancellation decision effectively on the basis of the same material which the Tribunal found not to justify the deportation order more than a year earlier.  In that time there is nothing which is put in the Minister’s memo at paragraph 6, which is any subsequent offence.  There is at least a passing reference to something that the psychologist said in January 1999 about offer of accommodation and employment.  The decision apparently seems to be based just on a statement such that, paragraph 17:

Mr Truong is not known to have made any contribution to the Australian community.  Up until the time of his imprisonment in 1997, he had never been involved in any community organisations –

Your Honour, this is a decision to cancel which has been made more than a year after, it would appear, there is any further information that the Minister has.

HIS HONOUR:   But in the end the point has to come to this, does it not, that it is beyond reason for the Minister to conclude that the fact of this man’s conviction and sentence to 16 months was sufficient reason to deport him?

MR KROHN:   Yes, your Honour, effectively it will ‑ ‑ ‑

HIS HONOUR:   That is the nub of the point.  It is either good or bad, is it not?

MR KROHN:   That is the nub of the point, your Honour, and that while there are technical distinctions between deportation and cancellation of a visa and, for example, there may later be consequences for somebody who might want to come back, but the essential consequence for the prosecutor is the same and the essential consequence for the respondent, in my submission, appears to be the same, that the main concern of the respondent would appear to be exactly the same that he had in making the deportation order and exactly what he fought in the AAT.

HIS HONOUR:   The bare fact that two decisions are made does not necessarily demonstrate that one of them is beyond reason.

MR KROHN:   No, your Honour.  I accept that, your Honour.

HIS HONOUR:   The nub of the point seems to me to be that unless you can say it is arguable that it is beyond reason to conclude from the bare fact of conviction and sentence for 16 months on this offence that the man should be excluded, the ground fails.

MR KROHN:   I do make that submission, your Honour, and the decision that was made to cancel the visa was made, the respondent having in front of him the Tribunal’s decision with its rehearsal of all ‑ ‑ ‑

HIS HONOUR:   I understand that.

MR KROHN:   ‑ ‑ ‑ the rehabilitative matters to which I have already taken your Honour.  I am indebted to my instructor, your Honour.

HIS HONOUR:   Most barristers are constantly, Mr Krohn, but there we are.

MR KROHN:   I am day and night, your Honour.  It goes to the stay but it also goes to the reasonableness of this decision.  The consequence of cancelling the visa is that, unless there is some successful review, the prosecutor must be removed or deported from Australia.

HIS HONOUR:   Well, first, the Act is engaged to the point where everyone under the Act is obliged to take him into detention. Is that not the first step?

MR KROHN:   Yes, your Honour, it is.

HIS HONOUR:   It is the statutory obligation to detain, then there is the obligation to remove.

MR KROHN:   Perhaps if I take your Honour specifically to section 196.  That is that:

An unlawful non‑citizen detained under section 189 –

which I submit is the case here or I understand to be the case here –

must be kept in immigration detention until he or she is:

(a)  removed . . . ; or

(b)  deported . . . ; or

(c)  granted a visa.

Now, the only purpose, and it is evident from the matters in the memo before the respondent Minister, the only ultimate result which is sought is the exclusion of the prosecutor from Australia, but there is evidence before your Honour that at the moment that is not possible.

HIS HONOUR:   How does this arise on the application as presently framed?  The application as presently framed is to challenge the decision of the Minister of 15 May 2000 cancelling the visa.

MR KROHN:   Yes, your Honour.  In my submission, it is unreasonable to cancel the visa when the intention of such cancellation is the removal of a person from Australia when that removal is not possible.  The only result of cancelling the visa in the present circumstances is not his removal but his indefinite detention and, in my submission, that is not an object of the Migration Act and it is not an object to be pursued by persons exercising powers under the Act. The objects of the Act are set out in section 4 and it is specifically concerned with the coming into and presence in Australia of non‑citizens and ‑ ‑ ‑

HIS HONOUR:   But let me just understand the proposition.  The proposition is, is it, that it is unreasonable to cancel a visa where to do so is not for the purpose of removal but for the purpose of detention?  Is that the proposition?

MR KROHN:   Even if it is not for the purpose of detention, where the foreseeable and inevitable consequence is indefinite detention, and your Honour has before you evidence – it is paragraphs 3 to 11 of the affidavit sworn by Mr O’Brien, 21 March 2001.  Also there is evidence in document 6, exhibit 6, the newspaper report, relating to the situation of the person kept in immigration detention.  I do not know if your Honour has seen that.

HIS HONOUR:   Yes, I have and let it be assumed for the purposes of the argument that immigration detention has the characteristics that are asserted, what is the basis of the challenge to the decision of 15 May?

MR KROHN:   That the decision of 15 May operates to cancel a visa in the first place, but its inevitable consequence is that it will operate not to remove a non‑citizen from Australia, but it will operate to keep him in indefinite and, it would appear, long‑term detention.  If the concern of the respondent is to regulate the presence in Australia of unlawful non‑citizens and to purge the community of some people who ought not to be here, then power is given for that purpose, but power is not given to the Minister to bring about a state of affairs where a person is kept in detention which is not a punishment for a crime.

HIS HONOUR:   It seems to me that we need to distinguish here between what loosely I might generally refer to as the circumstances of detention.  As at present advised, it seems to me that those are not issues that are raised by the present application, that is, it seems to me, at first blush, that it is not open to you in this application to say that this man is detained in circumstances that are inappropriate or unsatisfactory.  If that is so, then there may remain a separate question of whether the asserted absence of arrangements for reception in Vietnam of criminal deportees from Australia somehow reflects backwards into the decision to cancel.  Now, at the moment it is that last set of steps which I do not yet grasp.

MR KROHN:   I apologise for lack of clarity, your Honour.

HIS HONOUR:   No.  I will not debate whose fault that is.  I fear I would come off worst out of that debate, but I do not understand the way in which there is said to be that reflection backwards.

MR KROHN: In my submission, the objects of the Act are confined to the regulation of non‑citizens in Australia and the Act specifically provides for the possibility of permitting people to come and also of deporting them and removing them.

HIS HONOUR:   Yes.

MR KROHN: It is not, in my submission, a purpose or an object of the Act and it is not, therefore, a proper exercise of any power under the Act to take a step which must be known will have the effect simply that a person will be kept in indefinite detention. I make that submission simply because – I perhaps cannot put it any better than this, that deprivation of liberty being a serious thing is authorised by Parliament usually only for two kinds of reasons. One is as a punishment for a crime. That, in my submission, cannot apply here. The other is as a means of securing the presence of somebody for something unpleasant, such as removal from Australia against his will.

There is no other justification for the immigration detention under section 189 and that, in my submission, is made clear by the provisions of section 196, which give the options that you are in detention until “deported” or “removed” or “granted a visa”.

HIS HONOUR:   The premise for the argument must be, it seems to me, that there is no reasonable prospect of this man either departing or being removed – and it seems to me you must inject the notion of voluntary departure – so there is no reasonable prospect of this man departing or being removed from Australia within a reasonable time.  That seems to be the premise of the point that is now made, is it?

MR KROHN:   Yes, your Honour.  As to the voluntary departure, your Honour, if anything is required, then your Honour may, in my submission, reasonably infer that from the fact that the prosecutor has consistently taken action in the AAT and before your Honour to avoid departure.

HIS HONOUR:   The only inference I would draw from that is that this man wants to stay here, not an uncommon view of those who engage this jurisdiction.  This man wants to stay here.  I understand that.

MR KROHN:   He wants to stay and that it is not then put, your Honour – I am not aware of any evidence that the respondent has made any offer to the prosecutor of a voluntary departure.  I do not know anything about that, your Honour.

HIS HONOUR:   There is the point I fear, Mr Krohn.  Unless you come forward saying that there is no reasonable basis or no reasonable prospect of this man having any course open to him other than staying out at Maribyrnong for a time which is unreasonable, it seems to me the ground does not get there.

MR KROHN:   With respect, just perhaps following your Honour’s thought through a little further, under section 196 I am not sure that anything is now possible other than removal by the Minister or deportation or granting a visa.

HIS HONOUR:   It would astonish me if this man could not voluntarily depart.

MR KROHN:   If your Honour considers that ‑ ‑ ‑

HIS HONOUR:   I rather suspect the bus and taxi would be waiting at the door of Maribyrnong so quick that there would not be much time elapsed.

MR KROHN:   It may be that it would be technically then classed as a removal, but perhaps ‑ ‑ ‑

HIS HONOUR:   He may remain in detention until he hits the air side of the bridge, but if he were to announce an intention voluntarily to depart wherever, it would surprise me – you may be right, but it would surprise me if the Act did not contemplate that he might remain in detention until air side of the departure terminal.

MR KROHN:   Would your Honour pardon me a moment?  I am just looking for the affidavit of the prosecutor.

HIS HONOUR:   If we go back to the applicant’s affidavit of 12 February ‑ ‑ ‑

MR KROHN:   Paragraph 16, your Honour.

HIS HONOUR:   ‑ ‑ ‑ that seems to me to be drawn on the basis that he could go back to Vietnam, though that is not what he wishes to do.  That I understand.  I need no persuasion of the fact that this man wants to stay here.

MR KROHN:   I apologise, your Honour.  I think I am being dense.  I am not quite sure that I understand how it is your Honour considers that satisfaction that he would not – I am not sure for how long – voluntarily depart is necessary for this ground to be made out.

HIS HONOUR:   The Minister has cancelled his permission to remain in this country.  You point to the fact that he is now detained.  You point to the fact that there is no arrangement for his compulsory removal from this country to Vietnam.  But that leaves open the possibility that he might lawfully, but voluntarily, depart this country and remain in detention not an hour longer than would be required to effect his voluntary departure.  If that is so, no question seems to me to emerge.

MR KROHN:   I understand then your Honour’s point, but perhaps there may be something else that I am not grasping.  Your Honour, with respect, it seems to me that if, as your Honour seems to accept, that the prosecutor wishes to remain here, if also on the basis of his affidavit he is saying that for him to return to Vietnam would involve him in serious hardship and distress and he does not wish to do that ‑ ‑ ‑

HIS HONOUR:   I understand all that, yes.

MR KROHN:   ‑ ‑ ‑ then, in my submission, that is a statement that, as at the time of him swearing his affidavit, that he does not wish to depart and ‑ ‑ ‑

HIS HONOUR:   I understand that.

MR KROHN:   ‑ ‑ ‑ that, your Honour, therefore, in my submission, negates voluntary departure.  Voluntary departure is voluntary departure, “I go because I wish it.”

HIS HONOUR:   Yes.

MR KROHN:   In my submission, the prosecutor has said, “I do not wish to go”, and that is evidence that he will not make a voluntary departure.

HIS HONOUR:   But on this hypothesis the choice which confronts him is an unpalatable choice:  remain in detention or go voluntarily.  I accept that he regards each of those choices as unacceptable.  He would wish to have a third choice, namely, to remain.  But it seems to me, at least, that it is not a ground for judicial review of the decision to cancel simply to say there is no procedure for his compulsory removal from Australia.

MR KROHN:   May I take your Honour’s proposition – again, if I may respectfully ask whether your Honour would consider that that applies even if it appears that in a particular case this will mean that a person will be detained for a period of many years, for example, because there is a long‑running war or utter chaos in the country from which he comes?

HIS HONOUR:   That depends upon the assertion that voluntary departure is not practicable.

MR KROHN:   I am sorry, but if I may suggest to your Honour that the word “practicable”, in my submission, is an important one and that there are reasons, both in the prosecutor’s affidavit and also in the material before the Minister, including the Tribunal material, which, in my submission, demonstrate that, for example, because of the issue of drug rehabilitation, return to Vietnam is not practicable.  In my submission, your Honour should be concerned about voluntary departure only if there were really a prospect that the prosecutor would choose it.  It is not otherwise voluntary departure.  If the prosecutor will not go voluntarily, then all that remains ‑ ‑ ‑

HIS HONOUR:   His choice is to remain in detention until compulsive means for his removal are negotiated.

MR KROHN:   It is also, with respect, your Honour, not clear.  The material concerning the difficulty of repatriation of people to Vietnam goes to the issue of, amongst other things, apparently the unwillingness of Vietnam to receive back people with criminal offences.  Now, it is not clear, and it is not clear perhaps because the negotiations are delicate and difficult, but it is not even clear whether, even if the prosecutor now chose to go and even if a plane could be found for him, whether at the other end, he now being known to be somebody with a criminal record in Australia would be accepted, but your Honour I cannot take the point further than that.

In relation to the relief that is sought, your Honour, I do not – sorry, perhaps there is one thing I ought to say, that my submissions in relation to the effect of the cancellation as really being an indefinite detention or really effectively deprivation of liberty indefinitely, those submissions, although I did not address them earlier, would relate also to the ground that there is a failure to take a relevant consideration into account.  It would also go further.  It would go to that ground also, your Honour.

HIS HONOUR:   Yes.

MR KROHN: In relation to the relief, your Honour, in my submission, first, your Honour ought to be satisfied that there is an arguable case for prerogative – I am sorry, I should perhaps now say constitutional relief, at least under section 75(v) of the Constitution, that your Honour should grant the interlocutory stay which the prosecutor seeks. In my submission, if there is an arguable case and your Honour grants the order nisi, such a stay should be granted. It would have the effect that as the cancellation of visa does not – its effect is suspended or does not come into force, therefore, the visa is not cancelled and, therefore, pending the resolution of these proceedings, the prosecutor would have the effect of his visa and would not be in detention. So I seek that interlocutory relief, your Honour.

The two grounds advanced in the affidavits are effectively the severe hardship suffered by the prosecutor while the detention goes on, particularly if that is to be a further considerable period of time, and also there is evidence in the affidavit of Mr O’Brien sworn yesterday that there are practical difficulties that arise for him obtaining instructions and giving advice.  I have referred to authority, your Honour, for the proposition that for a court to grant a stay does not offend against section 196(3).

If your Honour is satisfied that the Minister has not given reasons, or if the Court should later be satisfied that the Minister has not given reasons in breach of section 501G, then, in my submission, in this case mandamus is not the appropriate remedy. It is not appropriate because in the circumstances of this case it could not be sufficient or ‑ ‑ ‑

HIS HONOUR:   Do you seek order nisi for mandamus or do you not?

MR KROHN:   I seek an order nisi to quash the cancellation order, your Honour.

HIS HONOUR:   So prohibition and certiorari, prohibition to prohibit further proceeding on and certiorari to quash.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Do you seek mandamus?

MR KROHN:   I do not seek mandamus for the giving of reasons.

HIS HONOUR:   Yes.  Do you seek mandamus in any other form?

MR KROHN:   I seek mandamus to compel the respondent to restore the visa and to release him from detention, if that is required.

HIS HONOUR:   The quashing of the decision to cancel would seem to have that effect and it would, indeed, be strange if the Minister, if we were to get to that stage on return of any order nisi, would not give effect to it.

MR KROHN:   Yes, your Honour.  Perhaps I should say I do not seek mandamus to give reasons but save that, if the Court were not minded to give any relief in the nature of certiorari or the other major relief that I do seek, if the Court were not disposed to grant certiorari, then in that situation I would seek mandamus, but my primary submission is that the appropriate remedy in the exercise of the Court’s discretion in these circumstances is simply certiorari.

HIS HONOUR:   Yes.

MR KROHN: The further relief sought, your Honour, the prosecutor seeks an injunction to restrain the present Minister from any further exercise of any discretion which he may have to cancel the visa, at least personally. The prosecutor does not seek to take himself outside the supervision of the law and the possibility that somebody else might lawfully have the power to consider whether to cancel the visa at some stage, for whatever reason. The Act, as it presently stands, allows the respondent, if he is minded at any stage in the future and on some other material, to consider it, to do it by way of delegate, but given the submissions which have been made in relation to specifically the apprehended bias point, the prosecutor seeks orders that would prohibit the present Minister himself personally from further exercising discretion to cancel in relation to the prosecutor.

HIS HONOUR:   Yes.

MR KROHN:   Should the order nisi be granted, I would understand, your Honour, that it would be appropriate that costs be reserved but ‑ ‑ ‑

HIS HONOUR:   Those questions perhaps should stand over for the moment.

MR KROHN:   Yes, your Honour, and otherwise just to certify for counsel.  If your Honour please, those are the submissions for the prosecutor.

HIS HONOUR:   Yes, thank you, Mr Krohn.  Yes, Mr McLeish.

MR McLEISH:   Thank you, your Honour.  Perhaps if I start with ground 4, the failure to give reasons.  Your Honour, the Minister’s first answer to that contention is that reasons were given.  The covering letter which accompanied the document which is TOB2, the “Issues for Consideration” document, is found at TOB1.

HIS HONOUR:   Yes.

MR McLEISH: TOB1 is headed “NOTICE OF VISA CANCELLATION UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958” and on page 2 of that letter, in the middle of the page, it says:

I enclose with this Notice:

·    a copy of the decision record that sets out the reasons for the decision.

There is not a document entitled “decision record” but I do not think it is in issue that the accompanying document was the one headed “Issues for Consideration” and what that document discloses, in my submission, is that the Minister considered the issues set out in that document and then came to the decisions set out on the final page. There were two limbs to the decision on the final page, the first being that the prosecutor did not pass the character test and was unable to satisfy the Minister that he did pass the character test. That was pretty much inevitable, I would submit, given the provision in the Act deeming somebody not to pass the character test if they have been sentenced to more than 12 months imprisonment.

The second decision, which I think is the decision which is the subject of contention, is the decision to cancel the visa as a result of getting over that first threshold test.  It is evident, I would submit, that after weighing the matters set out in the issues paper, the Minister felt that the considerations adverse to the prosecutor and in favour of cancellation outweighed the considerations which might have militated against cancellation and, really, what the Minister has done is no different to what the Administrative Appeals Tribunal did when it stated its reasons and relevantly, in the final paragraph of the AAT’s reasons, which is on page 15 of TOB9.  There the Tribunal indicated that it had:

given careful consideration to the safety and welfare of the community taking into account the circumstances surrounding the deportable offence and in view of the evidence that the risk of recidivism is minimal, I have come to the conclusion –

that the visa should not be cancelled.  The Tribunal has undertaken the same exercise as the Minister and simply come to a different view as to where the balance ultimately lay.  It may be, as my learned friend suggested, that the issues paper may not contain reference to some matters which he submits are relevant considerations, but that does not detract from its status as a statement of reasons, I would submit.  Maybe if it were accepted, for the sake argument, that there are matters not contained in it, then it could no doubt be argued that it was a defective statement of reasons, but I would submit a statement of reasons nonetheless.

The matters which were taken into account by the Minister must be taken to have included, not only the matters expressly set out in the statement, the issues document, but also the matters dealt with by the AAT.  The AAT’s decision was described as the first attachment to the issues document and certain matters set out in that decision are also summarised in the document itself.  So the first submission then is that a statement of reasons has been given.

I would also submit that even if a statement of reasons had not been given, that would not amount to jurisdictional error in any event sufficient to justify the relief that is sought in ground 4. That is because section 501G(4) indicates that a failure to comply with the obligation to give reasons “does not affect the validity of the decision”. So at best, I would submit, if there was a failure to give reasons, under section 501G the available remedy would be mandamus ordering reasons to be given.

The particular difficulty that the prosecutor has in seeking mandamus, I would submit, is that it has not sought anything further.  There has been no refusal, therefore, to provide further reasons, and that comes back perhaps to one of the questions about extension of time, but I would submit that in order for there to be mandamus there has to be a refusal to perform a duty and there is no evidence before the Court that there has been such a refusal.

My learned friend did refer to the Full Court’s decision in Singh. The only thing I wanted to say about that is that section 430 of the Act imposes a broader obligation on the Refugee Review Tribunal than is imposed under section 501G because section 430, as well as a statement of reasons, requires the statement to set out:

the findings on any material questions of fact; and

(d)  refers to the evidence or any other material on which the findings of fact were based.

Those requirements are not found in section 501G. I do not think I need to add anything further on ground 4, your Honour.

HIS HONOUR:   Yes.

MR McLEISH:   Ground 5, I would submit, does not add anything to ground 4, except that it does not rely on jurisdictional error.  They are relying on an error of law on the face of the record, but for the reasons I have already submitted, even if ground 5 were made out, the relief that it would justify would be mandamus and that would only be where there had been further reasons sought.

If I could then go to ground 3 – perhaps, your Honour, before I do that, it is worth noticing, I would submit, that the statement of reasons contains – my submission that the matters in there were considered by the Minister is borne out, I would submit, by the underlining of various parts of the document.  For what it is worth, it can be seen which matters struck the Minister as perhaps having greater weight than other matters.

HIS HONOUR:   I am not sure it is worth a great deal, Mr McLeish, absent some evidence saying that that is the Minister’s underlining.

MR McLEISH:   I accept that, your Honour.  The other matter though is that I would submit that the statement of reasons, if necessary, can be read with ministerial direction No 17, being a statement of the Minister’s view on these matters in general.  I will come to the status of that direction, but there is no reason to think that the Minister had changed his position on the relative weight to be attached to matters in cases of this kind.  So there is some further indication of the basis for the Minister’s decision in his own ministerial direction.  Ground 3 is expressed in terms that perhaps embraced more than one possible ground.  In the amended draft order nisi it is described as a failure:

to give proper genuine and realistic consideration to all relevant matters in making the decision.

I had initially taken that to be asserting a form of, for want of a better term, constructive failure to exercise jurisdiction.

HIS HONOUR:   It was argued, as I understood at least, as being a “fail to take account of relevant considerations” allegation and I think you should perhaps treat it as that.

MR McLEISH:   Yes, thank you, your Honour.

HIS HONOUR:   As I understood it, two particular matters were relied on, namely, a failure to take account of the relevant consideration of the risk of recidivism and a failure to take account of the relevant consideration of the availability of a destination for compulsory removal.

MR McLEISH: Yes, your Honour. I think I should still mention, your Honour, that there was a live issue, I think until the Full Court of the Federal Court dealt with the matter yesterday, as to whether a ground of genuine and realistic consideration could have been remitted. The Full Court has now held that that is not a ground under Part 8. I do not think I need to trouble your Honour with the nature of that decision. Now, in case your Honour was wondering about that point, I will go straight to the ‑ ‑ ‑

HIS HONOUR:   The application of Part 8 requires the closest consideration to the relevant section. It pays very careful and close attention to the language that is actually used in Part 8, but there we are. We need not enter on those topics today.

MR McLEISH:   I am sure that is a good thing, your Honour.  The matters which it was submitted were not taken into account were, first – well, I have listed here first the fact that the drug offences were at the lower end of the scale and solely for the prosecutor’s own – to support his own habit.  Those are, indeed, matters dealt with in the ministerial direction in paragraph 2.6.

HIS HONOUR:   The question is:  did the Minister take those to account in exercising the discretion?  Well, perhaps more accurately:  is it arguable that the Minister did not take those to account?

MR McLEISH:   Yes, thank you, your Honour.  It is not, I would submit.  First of all, in paragraph 11 of the decision, or I will call it the “issues document”, the statement of reasons, there is set out the fact that where in the supply and distribution chain the applicant’s involvement lay:

selling at street level, small quantities (caps) of heroin to finance his own addiction.”

Well, those matters are, therefore, expressly taken into account.  There is further elaboration of those matters in the AAT’s decision attached to this document which the Minister also took account of.  I would submit that it simply cannot be argued that they were not taken account of.  They are there.  The Minister – somebody has underlined part of the relevant provision.  There is no reason to think that those matters were not taken into account.  The second matter was the role of the prosecutor’s sister.  Again, paragraphs 24 and 25 of the reasons for decision deal expressly with that matter, in particular paragraph 24.  So I would again submit it is not arguable that the Minister failed to take account of that particular matter.

My learned friend also referred to particular reports contained in the AAT decision concerning the risk of recidivism.  Firstly, as I have said a number of times, the AAT decision was before the Minister and there is no reason to think that it did not form part of the material on which he based his decision, but in any event, paragraph 15 of his decision summarises some of the evidence which indicated:

that there was only a minimal risk of Mr Truong relapsing into drugs.

And refers to factors which made the likelihood of relapse minimal.  So, again, it cannot be argued that the risk of recidivism was not taken into account.  The most that could possibly be argued if the AAT decision had not been before the Minister might be that particular reports in the decision were not taken into account, but on the question of recidivism the material which the Minister took into account was all to the effect that it was unlikely, so it would not have made any difference to refer to additional material to the same effect.

HIS HONOUR:   What of this question of the availability of a destination for compulsory removal?  It was a matter mentioned late in Mr Krohn’s argument.  The document of 15 May is one which appears to proceed on the assumed basis that return to Vietnam is possible.

MR McLEISH:   Yes, your Honour.  I would say that if it comes to that, that is a matter on which the Minister would ultimately wish to put some material before the Court – I apologise for not being in a position to do that today – and would also wish to put some material before the Court, while I mention it, on the question of conditions at the detention centre, but the position, I would submit, is as follows.  I think my learned friend did take your Honour to section 196, which requires that a person be kept in detention in effect until “removed”, “deported” or “granted a visa”.

The mechanism in the case of voluntary departure is – before I get to that, the next logical step is to look at section 501E, and that prevents a person in the prosecutor’s position from making an application for a visa other than:

(a)  a protection visa; or
(b)  a visa specified in the regulations –

however, the regulations allow for a particular form of bridging visa to be granted by the Minister in the absence of an application, therefore, the prohibition on making an application can be sidestepped, as it were.  That is Regulation 2.25.  It is called a Bridging E (Class WE) visa.  The criteria for its grant are contained in subclass 050 of the second schedule in the Migration Regulations.  One of the criteria, it has to be read, mutatis mutandis, in the case where there is no application, but one of the criteria to be satisfied at the time of decision is that certain criteria to be satisfied at the time application continue to be satisfied.  The relevant criterion is item 050.212(2).  It states that:

An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

So the mechanism, if an applicant were to make such arrangements or to express a wish for voluntary departure, is for that bridging visa to be granted.  This brings me to the point that the cancellation of a visa does not in every case give rise to automatic detention because visas under this subclass can be granted in other circumstances as well, including where judicial review is pending.  So at best the status of the negotiations between Australia and Vietnam, the length of the likely detention, the conditions in the detention centre are relevant not to the decision to cancel the visa but to any decision made, if one were to be made, in relation to a bridging visa.

Still on question of failure to take account of relevant considerations, my learned friend’s argument, I think, proceeded on the basis that section 499 set out matters which were required by law to be considered by the Minister when exercising his power personally. I would submit that is not the case, that section 499 applies only where a delegate of the Minister or a tribunal is making a decision under the Act.

HIS HONOUR:   But if you are right in saying that it is not arguable that there was a failure to take account of relevant considerations, we do not get to the 499 point at all, do we?

MR McLEISH:   No, we do not, your Honour.  Likewise, if the direction can be taken into account as part of the reasons in itself, then there is no basis for saying that it was not taken into account either.

HIS HONOUR:   Yes.  Well, perhaps if we might pass to ground 6.

MR McLEISH:   Yes.  Ground 6 raised a number of matters of alleged apprehended bias.  The decision in Jia, as I have already foreshadowed I would be submitting to your Honour, really turned on the question of what it took to fail the character test in its then form and ‑ ‑ ‑

HIS HONOUR:   As eventually formulated, I understood the bias alleged to be apprehended was, or took the form that the Minister might not exercise the discretion given to him with an open mind which gave due weight to matters of the kind dealt with in the ministerial direction; that is, it was prejudgment of the way in which the discretion might be exercised rather than as in Jia, prejudgment of what constitutes good or bad character.

MR McLEISH:   Yes, your Honour, it was although I took it that the statements in Jia were relied on as part of the material indicating that.  I suppose all I would say is that they do not go to that question, they go to the first question and, indeed, the second reading speech also goes to the first question.  Whatever the Minister said before Parliament or in relation to the Jia Case has been overtaken by section 501A(6)(a) which now puts what the Minister said into the law.

In so far as the argument there is a closed mind on the question of discretion, the only basis for that, as I understood my learned friend, derives from the newspaper article which - - -

HIS HONOUR:   It seems to me there may be a significant distinction to be drawn between a closed mind about the case of AB:“I have formed a view that regardless of what AB says to me, AB is a person whom I will deport.”  That may be one set of circumstances.  To be distinguished from circumstances where the Minister says, “I have a firm and settled view that persons who have committed” this kind of offence or that kind of offence “are people who should be deported from Australia.”  There may be really quite significant differences for any available application of an “apprehended bias” test in the two sets of case.

MR McLEISH:   Yes.

HIS HONOUR:   At least the material to which reference has been made thus far in this matter seems, at least at first blush, to fall into the second category of “people who have committed this kind of offence or that kind of offence or offences described in this way are people whom I will see deported.”  Now, I understand there may be debate about whether they go even that far but at its highest that seems to me to be the - - -

MR McLEISH:   Yes, at its highest it amounts to say that “if somebody fails the ‘character’ test for a particular reason, then that is sufficient of itself to make up my mind about the discretion, and nothing else will make any difference.  That is, people who have committed a certain type of offence I will remove regardless of any other factors.”  In other words, perhaps, a statement that, in effect, the discretion would not be properly exercised.

HIS HONOUR:   There was debate in the course of argument in Jia about whether it was open to a Minister to say anyone convicted of rape and sentenced to a substantial term of imprisonment will be deported, period;  no “ifs”, “buts” or “maybe”.  Now, that is one class of case.  Another class of case altogether, it seems to me, is the case of “I know AB’s case.  AB is going regardless of what AB says to me.”

MR McLEISH:   Yes, or AB is a relative of a political opponent.  There might be a reasonable apprehension of bias.  I would suggest, your Honour, that the power to give directions of itself may inform the content of possible bias, the possible scope of a bias allegation because the example your Honour gave me about deporting or removing or cancelling the visas of all people who have committed a certain offence could be achieved by way of a direction.  When the Minister is exercising the power himself and there is no occasion for himself to give himself a direction he may, nonetheless, form that view and exercise his discretion on that basis.  That would be a policy question of the Minister to determine.

This case, I would submit, falls a long way short of any arguable suggestion that the Minister has foreclosed the exercise of his discretion in any such way.  That emerges, I would submit, from the newspaper article which my learned friend took your Honour to, which is exhibit TOB6.

My learned friend relied on two paragraphs there.  The first of those paragraphs quotes a spokesman for the Minister saying that:

permanent residents sentenced to jail for 12 months or more are ‘automatically looked at (for deportation); the law requires that to happen.’

That is a correct statement, I would submit.  People in that category automatically fail the character test and the Minister has a discretion and it is appropriate for the Minister automatically to look at such people for deportation, and that indicates merely that the discretion is exercised whether or not to cancel the visa.

The spokesman said the Minister was concerned by ‘the tendency of the Administrative Appeals Tribunal to overturn some of these deportation cases . . . In some cases people with serious criminal backgrounds have had cases overturned.”

Well, the Minister is entitled to comment on such cases and to express views and to say that he does not agree with every decision that the AAT made is not arguably indicative of a reasonable apprehension of bias.  But I would invite your Honour to go further down the page in this paragraph.  It is the third paragraph from the bottom.  Although it is not directly attributed to the Minister’s spokesman, it follows on from what he has said and I would submit that it is a correct statement and it is one which has to be taken into account in working out what the Minister’s position is.  It states there that:

Not all those liable for deportation are deported.  Each case is examined and factors such as character, whether they have a relationship with an Australian, whether there are children involved and any history of recidivism, are taken into account.

To the extent that that appears to be something which the journalist has acquired from the spokesman, it, again, is consistent with the statement that people are automatically looked at for deportation but it does not prejudge ‑ ‑ ‑

HIS HONOUR:   I know I do not have to make findings, Mr McLeish.  The only question is whether the case is arguable.  But can I confess to a little difficulty about construing newspaper reports.  Can I confess to a little difficulty about construing unattributed newspaper reports, leave aside those that attributed only to spokesmen.

MR McLEISH:   Certainly, your Honour, but to the extent that what is put in this report is said to reflect the Minister’s position and presumably the fact the Minister has not corrected it ‑ ‑ ‑

HIS HONOUR:   Look, I understand that you would challenge whether the statements bear the complexion that the applicant would seek to put on them.  I think we need to address the current application on the assumption that they are capable of bearing this meaning.  The question then becomes what follows from it.  Can I just explore for a moment with you one aspect of that?  It seems to me that central to the applicant’s case on this is the proposition that the Minister will not exercise a discretion with an open mind, that is to say, a premise for the contention is that that which should be open is closed, in this sense, the metaphor of “open or closed mind” is directing attention to whether the Minister will exercise the discretion according to law.  All of us, inevitably, fall into this metaphorical expression of “open or closed mind” but when it is said that the Minister does not or may be apprehended not to have an open mind, it is said that it is apprehended that the Minister will not exercise his discretion according to law.  Now, what do you say about that set of propositions?

MR McLEISH:   I still do submit, your Honour, that no such apprehension could be devined from the material which my learned friend relies on.

HIS HONOUR:   Yes, but do you accept that is the nub of the point that is sought to be made against you?

MR McLEISH:   That - - -?

HIS HONOUR:   The contention is that there is an apprehension that the Minister may not exercise the discretion according to law.

MR McLEISH:   An apprehension that he did not exercise the discretion ‑ ‑ ‑

HIS HONOUR:   Yes.  In this case, may not have exercised.

MR McLEISH:   Yes, it has to ‑ ‑ ‑

HIS HONOUR:   That seems to be the nub of it, does it not?

MR McLEISH:   Yes, your Honour, and in an appropriate case, an extreme case, perhaps, that might be arguable but that is not this case.

HIS HONOUR:   And that invites attention to whether, even if the statements were to be construed as saying, “Look, all persons of class X are to be removed”, that reveals an arguable case of failure to exercise discretion according to law; that is, whether it is open to the Minister to conclude that all persons of class X, falling within the failed character test group, are to be deported.

MR McLEISH:   Yes, your Honour, and I do submit that it is quite open and it comes back to the Minister’s power to make directions.  It cannot be said to be an indication of bias simply because the Minister ‑ ‑ ‑

HIS HONOUR:   Yes, but it is open to the Minister to say, “Listen, all murders will be deported.”

MR McLEISH:   Yes, exactly.

HIS HONOUR:   And whatever subsets of that there may be is a matter for judgment.

MR McLEISH:   The reason I was hesitating, perhaps, your Honour, is that the Minister may define a class which has no connection with his functions under the Act.

HIS HONOUR:   And that reveals error of law.

MR McLEISH:   Yes.

HIS HONOUR:   And unless you get to the point of error of law, the allegation falls over.

MR McLEISH:   Yes, your Honour.  Perhaps if I go to ground 2, the “unreasonableness” ground.  I think there were two aspects of this; the first being that there was no additional information ‑ ‑ ‑

HIS HONOUR:   I need not trouble you about that.  What do you say though about this question of no reasonable prospect of his being removed?  That is, as I understood it, a submission that the decision was made – it is

perhaps not quite improper purpose but it began to smack of improper purpose.

MR McLEISH:   I took it as leading more towards the relevant consideration, part of which I have already dealt with.  I would submit that the reasons are really the same, not taking account of the length of likely detention is not a failure such as to make the decision relevantly unreasonable.  For the reasons I have already submitted, it was not a relevant consideration and, a fortiori, it cannot taint the decision with unreasonableness.

As to the relief sought by my learned friend ‑ ‑ ‑

HIS HONOUR:   I need not, I think, trouble you, Mr McLeish, on questions of interlocutory stay or form of relief.  It might be most convenient if I heard from Mr Krohn in reply on this question of whether arguable grounds are made out and then if there are further issues, we might have a further opportunity to make some submissions.

MR McLEISH:   Yes, your Honour.  Your Honour asked me about enlargement of time.  There is a need for time to be extended in relation to certiorari because the decision was - - -

HIS HONOUR:   And what is the relevant imposition of the time limit?  Where do I find that?

MR McLEISH:   It is Order 55 rule 17, “six months after the date of the judgment” et cetera.  The respondent does not oppose any extension of time except on the ground that there is no arguable case.  So, there is no independent reason not to enlarge time.  For mandamus, the time, Order 55 rule 30, provides for two months from the refusal.  I have already submitted that mandamus does not lie because there has been no refusal.  So, time has not started to run, I would submit.  Thank you, your Honour.

HIS HONOUR:   Yes.  Now, Mr Krohn, what, if anything, do you wish to add by way of reply in connection with the arguable ground issues?

MR KROHN:   Very briefly, your Honour.  In reply to my learned friend, in relation to ground 4, about reasons not being given:  first, my learned friend submitted the document should be taken to be reasons because the covering letter referred to it in that way.  With respect, your Honour, it does not matter what the Minister calls it, the question is whether what is actually in it amounts to a statement of reasons.  The second is that – I think even my learned friend used the phrase that it referred to the weighing of matters.  In my submission, the weighing of matters in accordance with the direction is of the essence. 

The reasons must expose the logic of the decision and that to that extent, in my submission, although there are differences between section 501G and section 430 which imposes an obligation on the Refugee Tribunal to give reasons, the authorities, in dealing with section 430 have increasing tended to acknowledge that with 430 reasons, the setting out of reasons can easily overlap and often does with reference to evidence. So, in my submission, there is nothing really very much in the distinction between those two sections.

Again, if I might refer – I am sorry, I apologise for not having the citation to Singh.  The Full Court in that case laid stress on the importance of exposing the logic.  That is the purpose of it.  Also, my learned friend said this would not disclose a jurisdictional error.  In my submission, a failure to give the reasons and to expose the logic is so intimately connected with the issue of the making of the decision that there can be a fault which is a jurisdictional error. 

In relation to ground 5, my learned friend said that, here, if there is an error of law on the face of the record, by failing to give reasons, the appropriate relief is mandamus.  For reasons that I have already submitted supported by the affidavit material, in circumstances of the present case it would not be useful to order reasons to be given at this distance after a discretionary decision made by a busy Minister.  There is a purpose in ordering reasons to be given.  If there is any reasonable expectation that the decision‑maker will recall what the reasons were and how he came to the conclusion.  But in the first case that, in my submission, is unlikely in the present case and, second, there is always a risk – and in the Full Court judgment of the Federal Court, I think in Yusef’s Case – I think in the judgment of his Honour Justice Heerey, but I confess I do not have the exact reference, but I believe his Honour there indicated that there were sometimes situations where a court, having a discretion to order reasons, might rather choose simply to set a decision aside because of the risk that sometime after the event, with memory failing, there would be a risk or there might be perceived to be a risk that a decision‑maker would simply write reasons that will prop up the decision that has already been under attack.

In relation to ground 3, your Honour, the relevant considerations.  My learned friend referred you in the Minister’s document to a reference to the question seriousness and the quote from the Tribunal as to the lower end of the scale.  I accept, your Honour, that is there but in the structure of that memo, it would appear that is an observation of the AAT.  It is exhibit TOB2, your Honour, paragraph 11.  The way this is set out, it would appear that – there is a quote from the AAT.  The AAT has found this, but direction 17 says, “Well, production importation.  Here is it; it is very serious.  That is it.  That’s all you need to say.”  But I do accept there is a reference at that point to that part of the AAT decision.

In relation to the matters that my learned friend said were set out in connection with the sister.  My learned friend said they are set out at paragraphs 24 and 25 and those are very brief paragraphs and they are not under the heading in relation to recidivism, and I have made the submissions already in relation to that, your Honour.

As to the issue of removal, detention, granting an abridging visa, I acknowledge what my learned friend says about the possibility of a class of bridging visa but it is dependent upon a person saying, “I wish to go; I am willing to go; I am making arrangements to depart Australia.”  In my submission, that is not the case here and, on my instructions, it is not the case.

In relation to ground 6, the apprehended bias point: my learned friend seemed to be suggesting that the Minister could give directions under section 499 that expressed, perhaps, even fairly dramatic or extravagant policy notions and imposed them by way of direction. With respect, your Honour, section 499(2) does have a saving limitation:

Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

In my submission, your Honour, any provision in the Act which confers a discretion upon the Minister, unless it expressly is stated otherwise, must be a discretion that has to be exercised lawfully by reference to relevant considerations and so on and without there being reasonable apprehension of bias.

Your Honour discussed a little with my learned friend the possible categories of “closed mind or apprehended bias”.  Your Honour, one point that flows from Gunner’s Case, to which I have made reference in the outline, is the case which determined that it is not an error of law for the respondent Minister to exercise a power under 501 after the AAT has set aside a deportation order.  It follows from Gunner, in my submission, and from the Act itself, that as the powers are different and distinct, if there is an apprehension that what the respondent is actually doing or may actually be doing is using the power under 501 in order to overturn, in effect, a decision of the AAT which overturned a deportation order, if that is an apprehension reasonably raised, then that certainly is a source of unlawfulness. In my submission, there is sufficient - - -

HIS HONOUR:   That is to elide apprehension of bias and improper purpose, is it not?

MR KROHN:   It would, indeed.

HIS HONOUR:   And to move by injecting apprehension into the ground of improper purpose.  You would be making some new law if you did that, I think, Mr Krohn.

MR KROHN:   Your Honour, there are acts which may demonstrate different kinds of errors simultaneously.

HIS HONOUR:   No doubt.

MR KROHN:   If there is evidence that the Minister – as, in my submission, there is enough to make an arguable case – is concerned about the way the AAT overturns deportation orders; the Minister is concerned about the view the AAT takes about people who should be allowed to remain; the Minister is concerned, and as a result asks Parliament and gets the power to act personally in a way that the AAT is sidelined or under a separate power to overturn a decision of the AAT, then more recent remarks by the Minister’s spokesman do, in my submission, lead at least to an arguable case that there is an apprehension that because of the Minister’s concern, when he comes to exercise his discretion under section 501, he is not doing so with the requisite willingness to balance the relevant considerations. It might be that it could also, if the evidence took it so far, establish an improper purpose but, in my submission, the evidence might not be sufficiently strong to establish that and yet be sufficient to provide an arguable case that there is a reasonable apprehension of bias.

In relation, simply, to the question whether there is an arguable case of how it was unreasonable because there is not a prospect of removing the prosecutor, I simply repeat my previous submissions, your Honour.

Your Honour, all that I can say further is that the prosecutor’s instructions are that he is not prepared to depart voluntarily.  Those are the matters in reply, may it please the Court.

HIS HONOUR:   Thank you, Mr Krohn.  Mr Krohn, one matter:  could you help me with the pronunciation of your client’s full name.  There is nothing worse than him having his name - - -

MR KROHN:   I understand it to be Truong Van Luy.

HIS HONOUR:   Yes, thank you, Mr Krohn.

On about 15 November 2000 Truong Van Luy was given written notice that his permanent resident visa was cancelled under section 501(2) of the Migration Act 1958 (Cth), (“the Act”). At the time he was given that notice he was given a document entitled “ISSUES FOR CONSIDERATION FOR POSSIBLE VISA CANCELLATION UNDER SECTION 501(2) OF THE MIGRATION ACT 1958” which had been signed by the Minister for Immigration and Multicultural Affairs, Mr Ruddock, on 15 May 2000 and in which the Minister had indicated on the document, first, that he agreed that Mr Truong does not pass the character test and has been unable to satisfy me that he does pass the character test; second, that the Minister did not agree that he should exercise his discretion to not cancel the visa; third, that the Minister agreed that Mr Truong’s visa should be cancelled and finally, that the Minister did not agree that Mr Truong passed the character test and the visa is not cancelled.

Mr Truong now applies for order nisi for prohibition prohibiting the Minister from acting upon, or giving effect to, or proceeding further upon, or enforcing the decision made on 15 May 2000 to cancel Mr Truong’s permanent resident visa. Application is also made for order nisi for certiorari to quash that decision and, at least in certain circumstances, for order nisi for mandamus directed to the Minister together with injunction restraining the Minister from taking steps to remove Mr Truong from Australia or, as I would understand it, to consider exercising personally afresh any discretion that the Minister may have under the Act to cancel Mr Truong’s visa.

It is necessary to say something further about the history of the matters that lie behind the application.  Mr Truong obtained a permanent visa described as a Subclass 205, Camp Clearance Visa, on 11 January 1990.  He came to this country soon after, but between 1994 and 1998 committed a number of criminal offences.  It is unnecessary to notice all of the offences of which he was convicted.  It is enough to note that on 10 October 1997 in the Magistrates Court at Williamstown Mr Truong was sentenced to six months imprisonment for the offence of trafficking heroin to be served concurrently with 16 months imprisonment for trafficking in a drug of dependence.  A non‑parole period of six months imprisonment was fixed.

In September 1998 a delegate of the Minister for Immigration and Multicultural Affairs, acting under section 200 of the Act, ordered that Mr Truong be deported from Australia. Mr Truong sought review of that decision by the Administrative Appeals Tribunal. On 12 March 1999 the Tribunal set aside the decision to deport Mr Truong and remitted the matter to the Minister with a direction that the deportation order be revoked.

Mr Truong was released from prison in April 1999.  It was, as I have earlier indicated, not until May of the following year that the Minister reached the decisions that I have earlier set out and it was a still further six months before notice of those decisions was handed to Mr Truong.

Five grounds were advanced by Mr Truong as the basis for the grant of order nisi.  A further sixth ground of denial of natural justice was not pressed.  The grounds that were pressed were described as follows:

2…[T]he respondent erred in law and thereby acted without jurisdiction in that the decision was so unreasonable that no reasonable Minister could have made the decision.

PARTICULARS

The respondent was unreasonable in deciding to cancel the prosecutor’s visa upon the same material which had been before the Administrative Appeals Tribunal when it set aside the respondent’s earlier decision to deport the prosecutor.  The prosecutor further repeats the particulars to Ground 1 herein –

and I interpolate, those particulars referred to in ground 1 concern the allegation of denial of natural justice which now is not pursued.  I continue:

3.  Further or in the alternative, the Respondent erred in law and thereby acted without jurisdiction in failing to give proper genuine and realistic consideration to all relevant matters in making the decision.

PARTICULARS

The Respondent in the exercise of his discretion whether to cancel the prosecutor’s visa failed properly or at all to consider the prosecutor’s situation as required by Ministerial Policy Direction No. 17 – Visa Refusal and cancellation under Section 501 [of the Migration Act 1958] or as otherwise required by law.

4.  Further or in the alternative, the Respondent erred in law and thereby acted without jurisdiction in failing to set out in writing his reasons for the cancellation.

PARTICULARS

The Respondent in breach of s. 501G of the Act failed properly or at all to set out in writing his reasons for the cancellation.

5.  Further or in the alternative, the respondent fell into error of law and that error was on the face of the record.

PARTICULARS

The prosecutor repeats the particulars to Ground 4 herein.

6.  Further or in the alternative, the respondent denied procedural fairness to the prosecutor and thereby fell into jurisdictional error in that there was a reasonable apprehension that the decision was affected by actual bias.

PARTICULARS

There was a reasonable apprehension that the respondent did not approach the exercise of his discretion in relation to the applicant with an open mind or a mind open to persuasion in favour of the applicant, as shown by the facts that:

(a)  On or about 14 April 1997, in the circumstances set out in Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 . . . the respondent stated inter alia that:

“I don’t believe you are of good character if you’ve committed significant criminal offences involving penal servitude.”

(b)  On or about 30 April 1997, in the circumstances set out in Jia Le Geng the respondent wrote inter alia:

“That persons such as Mr Jia can be found to be of ‘good character’, despite his recent conviction for a serious crime undermine (sic) the Government’s ability to control entry into Australia on character grounds.”

(c)  On Wednesday, 2 December, 1998, in the course of the Second Reading Speech for the Migration  Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, the Respondent said inter alia:

“Over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations.  The AAT has found a number of non‑citizens who have been convicted of very serious crimes to be of good character…..those decisions …have alarmed the community…. It is essential that the minister, acting personally have the power to intervene and to set aside such decisions in the national interest…”

Again, I omit some words:

(d)  In “The Age” newspaper, in an article by Rod Myer published in or about March 2001 and headed “Migrants face a life spent in jail”, it was reported inter alia that:

“A spokesman for Mr Ruddock said the law was clear:  permanent residents sentenced to jail for 12 months or more are ‘automatically looked at (for deportation); the law requires that to happen”.  The spokesman said the minister was concerned by “the tendency of the Administrative Appeals Tribunal to overturn some of these deportation cases and he has, in quite a few cases, taken the decision to prevent them going to the AAT so they’re not appealable.  In some cases people with serious criminal backgrounds have had cases overturned.”

The applicant placed at the forefront of his argument the grounds which are numbered 4 and 5 which allege there was an error in law by the Minister in that he failed to set out in writing his reasons for the cancellation. The obligations of the Minister in this regard are those set out in section 501G where so far as presently relevant it is provided that:

(1)  If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

(a)  refuse to grant a visa to a person; or

(b)  cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)  sets out the decision;

(d)  specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)  sets out the reasons (other than non‑disclosable information) for the decision.

The central contention made by the applicant was that the document which is entitled “ISSUES FOR CONSIDERATION FOR POSSIBLE VISA CANCELLATION UNDER SECTION 501(2) OF THE MIGRATION ACT 1958” and on which there is endorsed the Minister’s decision is a document insufficient to inform the applicant precisely what were the considerations that were decisive in his case, or what were the comparative weightings applied to the various matters mentioned in that document by the Minister in exercising his discretion to cancel the applicant’s visa.

It is important to recall that the “Issues for Consideration” document was handed to the applicant, together with the notice of visa cancellation dated 15 November 2000.  In that notice of visa cancellation it was said that there was enclosed with the notice “a copy of the decision record that sets out the reasons for the decision.”  Plainly, the “Issues for Consideration” document was the document described as the copy of the decision record.  Thus, what was tendered to the applicant with the notice of cancellation was a document that was said to set out the reasons for the decision that has been reached.

That, of itself, may be reason sufficient to conclude that grounds 4 and 5 are unarguable.  Nevertheless, it is as well to consider the sufficiency of the document entitled “Issues for Consideration” as a statement of the reasons for the decision of the Minister that are endorsed upon it.

That document is divided into a number of parts giving personal and visa details of Mr Truong, giving consideration to the grounds for cancellation of his permanent visa, making an assessment then of whether Mr Truong passed what is called in the Act the “character test” being the test identified in section 501(6) and then setting out in Part D, under the heading “DISCRETION” a number of considerations that were thought to bear upon whether Mr Truong’s visa might be cancelled.

The matters set forth under the heading “DISCRETION” follow generally the structure which was adopted in a direction given by the Minister under section 499 of the Act and which is the direction to which reference was made in the applicant’s proposed grounds in the draft order nisi. That direction, No 17(2) and 17(3) goes through in some detail the way in which the character test is to be applied. On its face, the direction is given to “any person or body having functions or powers under section 501 of the Act”, and there may be a question whether, in its terms, it is a direction that applied to the Minister when he came to exercise powers personally under that section. This is a question which I leave to one side.

The direction identifies some matters as being primary considerations.  They are:

(a)  the protection of the Australian community, and members of the community;

(b)  the expectations of the Australian community; and

(c)  in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.

The “Issues for Consideration” document that was prepared in Mr Truong’s case dealt with each of those primary considerations.

It then went on to deal with certain other considerations thought to bear upon Mr Truong’s case including whether Australia owed protection obligation to Mr Truong under the relevant Refugees’ Convention. In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently complied with the obligation imposed by section 501G(1)(e). Read as a whole, the document reveals the matters that were before the Minister, assigned to various of them particular weight, and it was on the basis of that information – and I interpolate – only that information, that the Minister then reached the decision which he did. In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision record sets out the reasons for the decision that was reached.

The ground numbered 3 in the applicant’s proposed grounds was treated in argument as a ground that the Minister had failed to take into account relevant considerations.  Though expressed variously during the course of argument, there were in the end, I think, three or perhaps four matters that were said not to have been taken into account.  They were, first, that the applicant’s offences lay at the lower end of the scale of drug trafficking and were engaged in for the purpose of funding his own habit;  second, that there was insufficient attention paid to the risk of the applicant re-offending; third, that there was no attention paid to the availability of a destination for compulsory removal of the applicant if his visa were cancelled and, perhaps as a fourth point, that there was either no or no sufficient attention given to the role that the relationship the applicant had with his sister played in connection with his future prospects for living a beneficial life in this community.

Again, I am of the opinion that none of these matters raises an arguable ground for the grant of relief of the kind which the applicant seeks.  That the applicant’s offending conduct could on one view be seen as falling at the lower end of a scale of involvement in drug trafficking was adverted to expressly in the “Issues for Consideration” document when it was said that, “Mr Truong admits to casual drug use from 1994, leading to heroin addiction by 1996.”  The AAT found:

in the hierarchy of drug trafficking, the applicant’s –

Mr Truong –

involvement is at the bottom of the supply and distribution chain, in selling at street level, small quantities (caps) of heroin to finance his own addition.

As to the risk of recidivism there was a considerable treatment of this in the issues document.  That the applicant may have wished the treatment of it to put his prospects more favourably than it did is, in my opinion, beside the point.  Judicial review lies, if at all, for the correction of legal error, not as an appeal on the merits of the applicant’s case.  The complaint that is made in this respect concerns the merits rather than whether a consideration was taken into account.

It is right to say that the issues document proceeds on the premise that the applicant can be removed to Vietnam.  The evidence that has been tendered at this preliminary stage of the matter is necessarily scant.  It seems that as things presently stand it is not possible to compulsorily remove the applicant to Vietnam pending the making of arrangements with the government of Vietnam for reception of persons removed from Australia in circumstances similar to those of Mr Truong.

Nevertheless, in my opinion, it is not arguable that the failure to advert to that fact is a failure to advert to a relevant circumstance.  As I indicated in the course of argument, the contention which lies behind this assertion is one that depends upon the only alternatives facing the applicant being remaining in Australia or suffering immigration detention without immediate limit of time.  As I have said, that is a contention which leaves out of account the possibility of the applicant departing voluntarily, and recognising as I do that that is by no means his wish, it is in my view not a relevant consideration for the Minister to take to account whether, as the applicant contends, there is no presently existing sufficient arrangement for his compulsory removal to Vietnam.

As to the ground numbered 6, alleging reasonable apprehension of bias, it is enough if I say that some issues touching this ground might be thought to be raised by the matters of Jia Legeng and the associated matter of White now pending in the Court and standing reserved for judgment.  It is, however, in my opinion, possible to say, without embarking upon issues of the kind that stand for consideration in those matters that the ground numbered 6 does not raise an arguable ground for the grant of the order nisi which is sought.

The essence of the argument put was that, first, the decision which the Minister makes is one which can have important and serious ramifications for the applicant.  So much may readily be accepted.  Second, it was said that statements by the Minister can be understood as amounting to statements that all persons of a certain class, of whom the applicant is one, are persons who should be removed from Australia.  That that is the proper construction of what has been said is disputed and for my own part, as at present advised, I would tend to doubt that the statements bear the meaning attributed to them.  Nevertheless, for the purposes of disposing of the present application I am prepared to assume that they may.

The next step in the chain of argument is, however, that the Minister, having formed the view that persons of a certain class should be removed, the Minister will not exercise the discretion conferred on him by section 501 with an open mind, or at least with an open mind giving due weight to matters of the kind dealt with in the ministerial direction.

An important step in that last element of the argument is that the Minister should bring an open mind to the issue.  To continue the metaphor so often employed in this area, it is suggested that the Minister has a closed mind, closed in the sense that he will not exercise, or in this case has not or may not have exercised, his discretion according to law.

It is to be noted that the contention is one cast as one of reasonable apprehension of bias.  It is not a contention that the Minister has made an error of law in construing the statutory expression which engages his discretion or made some other error of law in its exercise.  If no error of law is arguably made out, then it follows, in my opinion, that it is not arguable that the discretion conferred on the Minister might reasonably be apprehended not to have been exercised according to law and it follows, in my opinion, that ground 6 is not arguable.

For these reasons then I am of the opinion that no arguable case for the grant of an order nisi of the kind sought is made out.  The application will be dismissed.

MR KROHN:   I beg your Honour’s pardon.

HIS HONOUR:   Yes.

MR KROHN:   I am not sure whether I heard your Honour say anything about ground 2, but I may be ‑ ‑ ‑

HIS HONOUR:   I did not, Mr Krohn.  I am indebted to you.  Forgive me.  I had not dealt with ground 2 and I should have.  Thank you for pointing that out to me.

I should continue then by noting that ground 2 alleged that the decision which the Minister reached “was so unreasonable that no reasonable Minister could have made” it.  Again, I am of opinion that ground 2 is not arguable.  It is, of course, right to point to the fact that the Administrative Appeals Tribunal reached an opinion contrary to that which underlies the Minister’s decision now sought to be challenged.  The bare fact, however, that another decision‑maker may have reached an opposite view does not of itself demonstrate that the other decision is beyond the realm of reason.

In this case I am not persuaded that it is arguable that it is unreasonable for the Minister to conclude that a person who has been convicted of the offence of which the applicant was convicted and who was sentenced to the term of imprisonment to which the applicant was sentenced should not, even in the various circumstances urged in the applicant’s favour, be removed from this country.  That is a decision that was, in my opinion, one which the Minister might reach without it being argued that it was one beyond the realm of reason.  That being so, as I have earlier indicated, I am of the opinion that no ground is made out and the application should be dismissed.

Mr McLeish.

MR McLEISH:   Your Honour, I do seek an order for costs.  I know the matter is strictly ex parte, but I would submit the Minister has acted in the position of the respondent.

HIS HONOUR:   Yes.  What do you say, Mr Krohn?

MR KROHN:   Your Honour, although your Honour has found that there has been no arguable case made out on the grounds that were advanced, I would nevertheless submit that in the circumstances that have been advanced, including the present circumstances of the prosecutor’s continuing an indefinite detention, that at least in all of the circumstances it was a reasonable application for him to make.  It was ex parte and ‑ ‑ ‑

HIS HONOUR:   Were the papers, in fact, served on the Minister?

MR KROHN:   At the request, I understand – I am subject to correction – of the Registrar and, in any event, they were served.  That is so, there has been communication with my learned friend and with solicitors for the Minister.

HIS HONOUR:   I rather suspect that we are dealing in matters academic entirely anyway, are we not?

MR KROHN:   It is probably the case, your Honour, save that eventually, if your Honour makes a costs order which is not paid, that is a debt to the Commonwealth and for as long as that remains undischarged, under the present law that is an obstacle to any future visa of any kind from anywhere.

HIS HONOUR:   I think also he is being charged for his detention, is he not? Is that not the scheme under the Act?

MR KROHN:   There is a charge, I understand, for deportees.  I am instructed $168 a day, your Honour.

HIS HONOUR:   Yes, I thought you paid for the privilege of being detained.

MR KROHN:   I suppose, your Honour, broadly put, that while there may not be a matter that takes it further in the question of an error of law, that there are things here which were matters at least of substance and it was not frivolous and in all of the circumstances, your Honour ‑ ‑ ‑

HIS HONOUR:   Not to be taken as suggesting it was, Mr Krohn.

MR KROHN:   No, your Honour, but in all the circumstances I would ask that your Honour make no order as to costs.

HIS HONOUR:   Yes.  In my opinion, the application having been brought and the Minister having appeared, it is right that in this case the application should be dismissed with costs.  I will certify for the attendance of counsel, and I will adjourn.

AT 1.01 PM THE MATTER WAS CONCLUDED