Lu v Min for Immig & Multicultural Affairs M17/2000 [2000] HCATrans 463 (10 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M17 of 2000

B e t w e e n -

HO SONG LU

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Office of the Registry

Melbourne No M42 of 2000

In the matter of -

An application for a Writ of Prohibition or for an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte:

HO SONG LU

Applicant

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 10.52 AM

Copyright in the High Court of Australia

________________

MR T.V. HURLEY: Your Honours, I appear on behalf of the applicant in M17 and the prosecutor in M42. (instructed by Haines & Polites)

MR J. BASTEN, QC: If the Court pleases, I appear with MR N.J. WILLIAMS, QC, for the respondent in each matter. (instructed by the Australian Government Solicitor)

GAUDRON J: Thank you. Is it convenient for them to be heard together?

MR BASTEN: I think it probably is, your Honour. We would certainly wish to divide our submissions, of course, but we can deal with them in order and together if that is convenient to the Court.

MR HURLEY: We agree with that, your Honour.

GAUDRON J: Yes. I think it might be more convenient, really, if we heard you first on the special leave application, Mr Hurley.

MR HURLEY: Yes, your Honour.

GAUDRON J: We will take it from there.

MR HURLEY: Your Honour, the applicant seeks special leave to appeal against the decision of the Full Court of the Federal Court given on 25 February this year. The applicant contends that that court made two generic errors of law. One, in failing to properly construe the provisions of section 501 of the Migration Act as in force when the decision was made. Our contention is that that provision, when it was passed by Parliament in December 1992, was never intended to authorise the cancellation of a visa held by a permanent resident.

GAUDRON J: Yes, but it may be that Parliament did not turn its mind to it. Do we not have to proceed on the basis of the words which now appear in the enactment to which Parliament may or may not have turned its mind?

MR HURLEY: Well, your Honour, the words of Parliament enacted were a "valid visa" or a "valid entry permit", and a "valid entry permit", relevantly, was defined as one that had not been cancelled. Parliament, in our submission, did not - had not been cancelled - the Minister only had the power, then, in December 1992, and between that date and September 1994, to cancel temporary entry permits. An examination of the records of Hansard and the explanatory memorandum shows that, in our submission, Parliament did not intend to alter that situation by giving the Minister a power to cancel permanent entry permits which would affect, on our calculation, approximately two and a half million persons in this country.

KIRBY J: Yes, but Re Bolton v Ex parte Beane makes it clear, and it is orthodox law and has been the law forever, if you do not go into the Hansard in order to find some ambiguity in the statute, you look at the words of the statute. If there then is ambiguity, you can have a look at what they said in their second reading speeches but you cannot create the ambiguity. That is the mischief of talking about intention.

MR HURLEY: Well, your Honour, we submit that the face of the 1992 legislation reveals that ambiguity, that it referred to a valid entry permit being one that had not been cancelled. The only ones that could be cancelled were temporary entry permits. It was also, your Honour, passed at the same time, considered by Parliament at the same time, as Parliament considered what is now section 116 and 117(2) which, in our submission, was a specific provision within this Court's decision in Project Blue Sky, the leading provision, as it were, showing that when Parliament did turn its mind to the precise question as to when entry permits could be cancelled, and it provided in section 117(2) that, on very similar grounds, being 116(1)(e), that the person would, if allowed to remain, cause disruption or prejudice the health of the country, that a permanent entry permit could not be cancelled while the holder was lawfully present in Australia. It is respectfully submitted that that was Parliament's intention - - -

GAUDRON J: That section is section 117, is it?

MR HURLEY: It is, your Honour. Section 116(1)(e) is the one that is the provision that is similar to section 501.

GAUDRON J: Well, I do not have that. What does that say?

MR HURLEY: Section 116(1)(e) enables the Minister to cancel a visa - - -

GAUDRON J: Tell me exactly what it says.

MR HURLEY:

the Minister may cancel a visa if he or she is satisfied that:

.....

(e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community - - -

GAUDRON J: Yes.

MR HURLEY: That provision is subject to subsection (2) and section 117(1) provides that a visa can only be "cancelled under section 116" either before the person enters Australia, or by subsection (2):

A permanent visa cannot be cancelled under section 116 if the holder of the visa:

(a) is in the migration zone; and

(b) was immigration cleared on last entering Australia.

That provision was introduced by Parliament and considered at precisely the same time as section 501 - - -

GAUDRON J: Now, there is a great big book of, allegedly, material relevant to your application but I cannot put my hands on those sections.

MR HURLEY: That section, your Honour, is in my learned friend's material, the actual Act, itself.

GAUDRON J: Yes, what page? I have not been provided with - I think I did ask for that Act to be brought.

MR HURLEY: I apologise.

MR BASTEN: I think, your Honour, that reprint No 5 is probably the one my friend is referring to. If I could provide that - - -

GAUDRON J: Thank you. These are past cancelled visas, yes, and do you say that bears on the construction of section 501?

MR HURLEY: Yes, your Honour. Section 117(2) was passed at the same time.

GAUDRON J: Yes. This is cancellation of a visa. Now, what is 500? This is a special power.

MR HURLEY: Yes, your Honour.

GAUDRON J: Now, what about the general rule that - generalia specialibus non derogant is its Latin formulation - you do not read down a special power by reference to the general power?

MR HURLEY: Except, your Honour, when both powers are introduced into the Act at the same time by Parliament in the same sitting, albeit in different pieces of legislation. Parliament, it is our respectful submission, turned its mind to the precise question of when permanent visas could be cancelled and concluded that for conduct that would be "a risk to the health, safety or good order of the Australian community", it could not be cancelled where the visa holder was present in Australia. It could only be cancelled when the visa holder was outside of Australia.

GAUDRON J: Yes, but you are talking about different considerations, are you not? The power under section 116 is talking about much more general things, although it does include the "health, safety or good order", whereas section 501 is dealing with quite a distinct category of situations. There is some overlap but they are different, are they not?

MR HURLEY: There is some overlap but we submit that the power given by section 501 is potentially very broad. Your Honour will have seen in our submissions that it extends to cancelling visas for, essentially, holding opinions and being "likely to engage in criminal conduct", or being villifying segments of the Australian community. It is such a broad and open-ended power that given that Parliament passed, in relation to a similar power, the limitation on cancelling permanent visas when the person is in Australia, and also at the same time passed a whole raft of provisions relating to the cancellation of visas that are set out in Part 3, that Parliament, at the same time, would give to the Minister a totally open-ended power in terms of time and occasion to cancel permanent visas held by a person lawfully present in Australia.

It is submitted that section 501 is consistent with both the deportation power in section, what is now, 200, and section 116, the visa cancellation power, and 116 and 117(2), if section 501 is limited to not authorised cancellation of permanent visas where the person is in Australia. Other provisions authorise the Minister to cancel - - -

KIRBY J: Do you say that there are Hansard references that specifically address this interaction of the two sections?

MR HURLEY: No, there is a Hansard reference that addresses section 501 and, your Honour, in our submission - - -

KIRBY J: What does it say, in effect?

MR HURLEY: The Minister for Justice records in the Senate that this provision is intended to keep our people from coming to Australia as tourists in this instance and that the matter could be addressed in committee, and it never was addressed in committee. If your Honour - - -

KIRBY J: Well, your argument, in short, is that if 501 were given the broad construction urged, it provides a camel, a horse team and a few elephants to walk through section 116 where Parliament has limited the power to the Minister.

MR HURLEY: Yes, your Honour, and also the deportation power in section 200 becomes completely otiose. There is no need for a deportation power for criminal conduct, that being limited to criminal conduct by a permanent resident where the criminal conduct occurs within 10 years of the person entering the country and is specifically limited. That provision becomes totally redundant if the Minister, under section 501, can cancel a visa at any time. Your Honour, when it was introduced in 1992, the provision authorised the cancellation of valid entry permits. The nomenclature was changed in 1994 and the explanatory memorandum records, in our book of material at page 382, that that was done "primarily to provide for consistent terminology".

So that, if the provision between December 1992 and September 1994 did not authorise the cancellation of visas, which were then called entry permits, held by permanent residents, it is our submission that the change of terminology from 1 September 1994 did not affect the legal power which was intended to be given to the Minister. Your Honours will recall the reasons why this provision was introduced was to overcome the decision, or counter the decision or address the consequences, of the decision of the Full Court of the Federal Court in the Hell's Angels litigation which, in turn, concerned visitors seeking to enter Australia. The explanatory memorandum addresses and uses the term to prevent people - it is addressed at keeping people, it is our submission, your Honours, out of Australia, not removing those who have been lawfully present in Australia for whatever length of time.

This submission was put to the court below, relying on Project Blue Sky as section 116(2) being the key, or the leading provision, and the Court rejected it. The consideration in the explanatory memorandum, your Honours, is found at the book of materials at 154. Your Honours will see at court book 154 the explanatory memorandum addresses section 50AB, which is now section 116, everything having been renumbered. Section 50AC indicates that the:

section sets out when a visa may be cancelled. Similar to the present position under subsection 35(1) -

I interrupt myself, your Honour - that authorised the cancellation of a temporary entry permit at any time -

of the Principal Act, a temporary visa is always within the cancellation powers, but a permanent visa cannot be cancelled under section 50AB while the holder is in the migration zone, provided that the person has been immigration cleared in relation to that entry. Note however, that such a person's permanent visa may be cancelled while the holder is in Australia under section 45 -

That, your Honour, is to do with business visas where the person has arrived and not committed the business investment, "(see above)", which is at paragraph - the book of materials at page 151:

and, in the case of a permanent business visa, under section 50A.

I apologise, your Honours, I have it the wrong way around. Section 45 is deportation and 50A is the business visa. It is submitted, and over the page, your Honour, at paragraph 133, the explanatory memorandum records:

There will be power to cancel any visa while the holder is:

. outside Australia;

. in immigration clearance; or

. departing Australia.

It is respectfully submitted that Parliament did not intend passing both of these pieces of legislation at the same time - - -

GAUDRON J: It may not have turned its mind to it. I mean, it is a bit of a fiction to talk about Parliamentary intention these days. One well knows that the government introduces legislation and - - -

KIRBY J: It is drafted by officials.

GAUDRON J: Drafted by officials, and there is reason to think it is voted for along party lines without individual members turning their minds to it or, in this case, probably, on bipartisan lines. But the words are there. You have to read "visa" in section 501 as meaning "visa other than one entitling a person to permanent residence". You have to read words in.

MR HURLEY: With respect, your Honour, we take the Court back to what Parliament put in - - -

GAUDRON J: We know what Parliament put in but you have to say that that entitles you to read down. Now, there is not any antipathy between these two provisions or inconsistency, in the sense that they just cannot work if they are both in the Act. They can both work. So, you have to then find some reason - - -

MR HURLEY: Your Honour, they can both work in the sense that if section 501 authorised the cancellation of permanent visas, as they are now called, at any time, it will work. But the rest of the structure that Parliament put in for cancelling visas at the beginning of the Act, section 116, and the whole deportation power in section, what is now 200, simply ceases to have any relevance.

GAUDRON J: Well, the Minister may choose to operate in such a way, I suppose, that the practical relevance is significantly reduced. But that is a different question from what you are asserting. You are asserting that "visa" has to be read other than in its normal and ordinary meanings in section 501.

MR HURLEY: Your Honour, the definition section provides, as in all Acts, that "unless a contrary intention appears", and it is our submission that having regard to the purpose for section 501 being introduced, the terms of it, as initially introduced, being a valid entry permit, being one that had not been cancelled where only temporary ones could be cancelled. Your Honour, the nature of the review rights were given. If your Honours have the book of materials at page 61, the Parliament gave review rights - at page 159 at line 25, your Honours will see there, section 180(3), which - does your Honour have court book - - -

KIRBY J: Just tell us. You are running out of time.

MR HURLEY: It authorises review by a person whose visa has - "who is the subject of a decision", where "the person has entered Australia and has not left Australia". Permanent residents under no obligation to leave Australia and - - -

KIRBY J: Your theory of these sections is that a permanent resident is, for this purpose, assimilated somewhat to a citizen.

MR HURLEY: Yes, your Honour. So that, the basis of a review right is given to people who have not left. There is no obligation on a permanent resident to leave at any stage and if it was intended to cover them, it is a most curious definition of the class of persons who were intended to be affected by it. It is our submission, your Honour, that Parliament is looking at removing criminally inclined permanent residents under the deportation power and temporary residents were given under section 501. If that construction is given then all of the provisions of the Act can work in harmony without section 501 overturning the other provisions. We put the submission below, it was rejected, and we submit it raises a matter of warranting the grant of special leave.

GAUDRON J: I think you have a few more minutes but you have probably put your main argument.

MR HURLEY: I have, I believe, your Honour. The difficult with this is that the Act was introduced in 1992. The provision actually amended it commenced in the Senate, whereas the other legislation started in the House of Representatives. It was considered together in the Senate chamber. The amendment that was made in 1994 to change it from permanent entry - permit to visa - was for consistency only and we submit that it should not be imputed to Parliament an intention to prejudice permanent residents without clear and unambiguous language to that effect; to empower the Minister to remove them, particularly when one considers the grounds which include prognosis as to personal conduct. We seek special leave in 17 of this matter.

GAUDRON J: Yes, thank you, Mr Hurley. Yes, Mr Basten, we will hear you on the special leave application at this stage.

MR BASTEN: Yes, thank you. Your Honours, at page 36 to 37 of the draft notice of appeal, four grounds are raised. My learned friend has addressed the first ground, and in his written argument, the second. Those seem to us to be the two issues he seeks to agitate. Could I simply deal with those matters? In relation to the matter that he dealt with orally, your Honours, there is no doubt, we would say, that the terminology of the Act is precise and clear.

Whatever may have been the occasion for the introduction of the legislation, the concept of an entry permit and, indeed, a valid entry permit, has always been one which includes both temporary and permanent entry permits. The argument - and perhaps I should just note, your Honours, that that appears from the first legislation in the blue book at pages 4 and 5 where there is a definition of "valid entry permit" followed by a definition of "valid permanent entry permit", which makes it clear that an entry permit includes a permanent entry permit. My friend's argument, based on 116 and 117, actually, with respect, assists us and not him.

KIRBY J: It is a little more than that. He rests it on the need to read the whole Act, each doing whatever work it is intended to do, and to read the way in which the Act was amended to introduce this provision which it is said would undermine a contemporaneous parliamentary purpose in, not intention, but what one could infer was the purpose of the legislature to limit the powers of the Minister in respect of permanent visa holders.

MR BASTEN: Yes. At the time of the introduction, your Honour, the power to cancel an entry permit was, as my friend said, contained in section 35, which appears at page 10 of the papers. That was expressly limited to a valid temporary entry permit. The problem my friend has is that when the new provision was introduced it was not so limited. "Valid temporary entry permit" was an understood and defined term and had been used to limit an existing power. This was an additional power and it was not limited by the use of that term.

KIRBY J: Of course, his explanation of that is that that was because it would have been far from the Parliament's mind at a time that was amending another section of the Act to, as it were, give the Minister a completely unrestricted, or relatively unrestricted, power which the whole point of the other amendments was to restrict.

MR BASTEN: Well, with respect, that does - - -

KIRBY J: It is a matter of reading the legislation as a whole and - - -

MR BASTEN: I have no difficulty with reading it as a whole, your Honour. Section 35 is a power to cancel by the Minister in his or her absolute discretion. It is a very different sort of power and one can understand why that was limited to temporary entry permits. This is a provision introduced for the purpose of not permitting people of bad character to remain in the country. Given that purpose, there is no clear reason why it should be restricted in the same way. The language is not so restricted.

When one goes to the rest of the scheme of the Act - might I just take your Honours back to 116 to 118 - my friend relies upon the fact that there is a restriction on cancelling permanent visas under section 116 which is found in 117(2). But that goes against him, because where Parliament has thought it appropriate to impose a restriction on a cancellation power, it has done so in precise terms. What my friend did not take you to was to section 118 which makes it clear that Parliament is conscious that there are a number of powers of cancellation in the Act, including 501 after the amendment, each is not to be limited or otherwise affected by each other.

KIRBY J: Yes, well, that is a very potent argument.

MR BASTEN: That is our proposition, basically, your Honour, in relation to that.

GAUDRON J: Mr Basten, we do not wish to hear you further on that submission. Do you wish to reply to this?

MR HURLEY: May I , your Honour? The point my friend just made about section 118, we submit, does assist us. If your Honour goes through the provisions, paragraph (a) does authorise the cancellation, we concede, of a permanent visa holder who has given incorrect information. Paragraph 116 is the one we have been through which is subject to section 117 and does not authorise cancellation of a permanent visa. Section 128 specifically deals with the position where somebody is outside Australia which is the point, we say, is Parliament's policy.

Section 134 specifically provided for the cancellation of permanent visas where the investment was not made, a specific ground. Section 140 is consequential on other visas being cancelled. Section 500A was introduced after the event and relates to specific safe haven visas and section 501 is the question that the Court is considering. It is our submission that - - -

KIRBY J: It does not seem to beg the question, it seems to answer the question.

MR HURLEY: Well, your Honour, we submit - - -

KIRBY J: Because Parliament has said that the powers conferred on the Minister to cancel a visa including under sections 501, et cetera, are not limited by each other. There could not be a clearer indication that they are separate categories.

MR HURLEY: But, your Honour, we submit the proper construction of that provision is that the occasion when they can be exercised is not limited, on the factual situation. It does not answer the question as to the circumstances in which it operates and we submit that Parliament has made specific - - -

KIRBY J: Yes, but as a power it is unlimited. You may complain that the Minister cancelling it in this case, where this man has lived in the country without criminal offences for 10 years, is an unjust exercise of the power or a wrong exercise of the power. You may be able to attack that in some way. But he has the power and it is clear that Parliament was not intending to limit that power.

MR HURLEY: Your Honour, what section 118 does not do though, is take the powers outside what we submit are their proper boundaries, and if section 501 was introduced - directed to temporary visa holders, it does not, by appearing in that list, extend or grow to affect permanent entry holders.

KIRBY J: You might have had an argument without section 118 but section 118 goes straight to the jugular of your argument, I am afraid. That is just my view.

MR HURLEY: Well, your Honour, I do not believe I can take the matter any further.

GAUDRON J: Thank you, Mr Hurley.

KIRBY J: You still have your application for constitutional writs though.

MR HURLEY: Yes, your Honour.

GAUDRON J: On the special leave application, that application will be refused.

MR BASTEN: With costs?

GAUDRON J: Well, I will hear you later on costs.

MR BASTEN: All right, yes.

GAUDRON J: When the Parliament has set up this bifurcated procedure which has applicants for review going to different courts, at different times and different directions, I think there is a case to be made for leaving costs where they fall, at the very least, in matters of this kind.

KIRBY J: I agree with Justice Gaudron, in that respect.

GAUDRON J: I will hear you later on costs.

MR BASTEN: Yes, thank you.

GAUDRON J: But before we hear you on your costs of that, we think we would be assisted if we heard you first on the application for prerogative relief?

MR BASTEN: Yes. Your Honour, might I start by saying that a notice was issued under section 78B despite what was said. Your Honour, an affidavit has been filed in the Brisbane office of the Registry. Could I, perhaps, simply provide copies for your Honours here.

GAUDRON J: Yes, thank you.

MR BASTEN: The short answer is that nobody seeks to intervene at this stage.

GAUDRON J: Thank you, yes.

MR BASTEN: Your Honours, there is, perhaps, an issue arising from what we would say is the first problem faced by the prosecutor in this case in seeking prohibition and that is as to the extent of the ground, which we would say is properly defined as the need to establish jurisdictional error.

GAUDRON J: Well, you have two problems in relation to that argument, Mr Basten, have you not? First of all, he seeks an injunction. A remedy clearly mentioned in section 75(v), a remedy which was not traditionally bound by notions of jurisdictional error and, in any event, it is a very interesting point as to what is jurisdictional error for the purposes of 75(v).

MR BASTEN: I accept both those propositions that your Honour puts. I wanted to put this very interesting question to one side - - -

GAUDRON J: I thought you might. You can only do that by going to the merits, can you not?

MR BASTEN: Yes.

GAUDRON J: And, really, you have to - - -

MR BASTEN: Say that there is "no arguable" case on the merits.

GAUDRON J: No arguable case, and you are faced then, are you not, at the very least, with what is at page 157:

In considering this matter -

if the Minister.....is right -

you may wish to have regard to -

that Mr Lu may seek AAT review and further delay his departure from Australia.

MR BASTEN: Yes.

GAUDRON J: Well, now, that is almost a fraud on the power, is it not?

MR BASTEN: Well, can I say two things about that, your Honour? One is that what my friend has to do, we would say, and we do say this in our written submissions, is identify an error which could not properly have been dealt with before the Federal Court.

GAUDRON J: Well, you say that, but your client is responsible for legislation which has people coming in both directions.

MR BASTEN: I accept that.

GAUDRON J: Under the legislation, as it once worked, the area in which the Federal Court could operate was such that it was never necessary to consider how 75(v) worked because the whole matter could be dealt with and there was a basis for saying, until that time, as a discretion, "Well, you could have raised the matter in the Federal Court". Well, you would say, "Clearly, you could have raised the matter in the Federal Court as a matter of discretion", and so forth and so on. It is not so clear what can be raised in the Federal Court now, is it?

MR BASTEN: I accept that, your Honour. I was merely saying that when one is trying to identify how it is put, what my friend seeks to do in relation to that is to say that - he does not say "improper purpose", in his submissions, we would say, because he cannot. He seeks to rely upon an "unreasonableness" ground, however one might define that.

GAUDRON J: Well, there is, perhaps, a very considerable overlap between unreasonableness and proper purpose, and fraud on a power. Yes, taking irrelevant matters into consideration. They all overlap.

MR BASTEN: Well, there may be that, and I understand what your Honour is putting to me about how 476 may operate. There are interesting questions there.

GAUDRON J: One can well understand that a Federal Court, for example - this is the problem with this legislation - might have said, "No, we do not find that that was improper purpose but we do find that that was an irrelevant consideration and we are not allowed to take that into account".

MR BASTEN: Yes.

GAUDRON J: Where would we be then? We would be hearing an appeal as well as a 75(v) application.

MR BASTEN: I do not doubt that that can arise, your Honour. I think the point I am putting to your Honour is not that these are not important questions. What I want to say is that they do not arise clearly in the present case. If one goes to page 193 of the book, what one finds alleged about the visa cancellation decision, as it is there identified, is a ground in paragraph 4 of the grounds of manifest unreasonableness - I paraphrase - based on selective punishment or scapegoating. Now, that ground depends upon an improper purpose which requires comparison with others who may have been in similar circumstances. The factual foundation for that ground is missing because - - -

KIRBY J: The Court of Criminal Appeal of New South Wales thought that there was some injustice in respect of the several offenders, did it not? It deleted, in the case of the applicant, the recommendation of the trial judge to deport him.

MR BASTEN: Yes, it did so on the basis that, whether that might be justified or not, it had not been raised with the applicant before. It was a procedural fairness argument at the trial stage though. We put that to one side.

KIRBY J: He had lived in Australia with the permanent visa for 10 years.

MR BASTEN: I do not doubt that there are arguments about - - -

KIRBY J: He has now lived for nearly 20 years - - -

MR BASTEN: Yes, he had been 82 to 90, I think, before the criminality, which was the subject of the convictions, occurred. The question though was, really, your Honour, whether or not the factual basis for alleging this selective punishment arises and it must be, in effect, an estoppel against the Minister on the basis of the Court of Criminal Appeal saying that they were all - - -

GAUDRON J: Not necessarily.

MR BASTEN: Well, how else - - -

GAUDRON J: But it may, if there is no - it may be, it may ground a conclusion of unreasonableness unless there is material to suggest that all the co-offenders were considered and that there were reasons for distinguishment between them. It may form a basis. I can well see an argument for unreasonableness, particularly, in the context of the advice, not only in relation to this, but in relation to the earlier decision, which seems to say, "Well, look, let us deal with this on a basis on which this man cannot get any review".

MR BASTEN: That is the purpose and effect of the certificate, there is no doubt about that.

GAUDRON J: Yes, one may take into account that that is the purpose - not the purpose, that that is the consequence, but that is not necessarily to make it the purpose.

MR BASTEN: The purpose is that he be - - -

GAUDRON J: One would think, you might say, think very carefully before you do this because of that consequence, whereas the suggestion in the letter is the other way round.

MR BASTEN: We would say not, your Honour, in this sense, that the suggestion in the letter to which your Honour took me is that if you - - -

GAUDRON J: You may further delay his departure. That seems to indicate you want him out quickly.

MR BASTEN: We do not want him at large in the Australian community for a significant period of time. Last time he was at large he committed very serious, horrendous offences, according to the Court of Criminal Appeal, some whilst on bail and the consequence of that history, including a history during his sentence of imprisonment, which was not conducive to satisfaction, perhaps, of full rehabilitation, those were factors which the Minister was entitled to take into account in making a judgment as to whether it was in the national interest that he be allowed to remain at large in the Australian community for a further period of time.

KIRBY J: Has he been kept in immigration detention since completion of his prison term, do you know?

MR BASTEN: By force of the Act, he has, because once he has no visa then there is no power other than to keep him in detention. That was one of the consequences of the legislation which, obviously, the Minister was entitled to take into account.

All we say is that in relation to such matters as the public and national interest, in accordance with the Maitan line of authority to which we refer in the written submissions, these are matters of judgment which are vested in the Minister and for which he is made politically accountable.

GAUDRON J: And section 75(v) vests jurisdiction in this Court to review such decisions and to grant equitable relief in respect of them if they are attended by any of the matters that warrant that relief. So, it is all very well to tell us about the Minister's political accountability. This Court is also accountable.

MR BASTEN: I do not doubt that at all.

GAUDRON J: The only basis on which you could resist this application, is it not, that there is simply no arguable case on the merits?

MR BASTEN: Yes.

GAUDRON J: Not that the Minister is politically accountable.

MR BASTEN: May I say two things in response to that? Firstly, that is certainly the basis on which I am seeking to resist it at the moment. Might I come back to what your Honour said about injunctive relief? Clearly, that is an equitable remedy available under 75(v). It would not go, we would say, unless the decision, the cancellation decision, was invalid. In other words - - -

GAUDRON J: Well, that is a very interesting question. That is perhaps the most interesting question that I have heard raised in a long time.

MR BASTEN: Well, I am delighted to - I should be doing a special leave application. I have never had your Honour's response to a special leave application in those terms. And that may well be an interesting question like the one about the grounds under 75(v). What your Honour is dealing with at the present in your Honour's questions to me concerns the certificate only, and this was the second point I was going to raise. If your Honours were of the view that there was an arguable point in relation to that, it would not, with respect, follow that the other aspects of the decision - - -

GAUDRON J: With respect to the certificate, I was - - -

MR BASTEN: Well, the matter - yes, we were talking about the basis upon which - - -

GAUDRON J: Yes, the subsection, but do you not have this difficulty in saying that "Where do I find it here?" It really all has to be part of the one decision, according to the Act. You cannot segment them. It really is hard, looking at the basis on which these submissions came forward, firstly, at page 149. It really does not seem to me you can segment these decisions. Arguably, you cannot segment them.

MR BASTEN: With respect, your Honour, there is no doubt - - -

GAUDRON J: Indeed, it is hard to think that unless the Minister thought he could make an order under - well, give the certificate, that he would have made an order under 501 exposing himself to judicial review or administrative review, when at page 149 it is fairly clear that all these steps have been taken to avoid judicial review.

MR BASTEN: Well, there were undoubtedly two stages in that process and two different test applied. His satisfaction as to character was the jurisdictional fact which enlivened the cancellation power.

GAUDRON J: Yes.

MR BASTEN: In relation to the certificate, there was a separate test, namely, the seriousness of the activity and the national interest and, under 502(1)(b) the seriousness of the circumstances giving rise to the making of the decision and that considered in the national interest.

GAUDRON J: Section 502(1) - - -

MR BASTEN: I am so sorry, is your Honour looking at the current Act or - - -

GAUDRON J: Who knows? It has an orange cover. That is the last one we seem to have had.

KIRBY J: It seems to be Reprint No 7.

MR BASTEN: Yes. Yes, it has changed.

GAUDRON J: Now, 502(1) - well, is this the one that was current when the decision was made?

MR BASTEN: No.

GAUDRON J: In section 502(1), it says:

the Minister may, as part of the decision - - -

MR BASTEN: I think, probably, your Honour, it is safer to look at page 25 in the application book which has the reasons of the Full Court, and her Honour Justice Kiefel sets out the provisions in the form they were in at the time of the decision. Your Honour will see line 20 on page 25:

501(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a) subsection (2) applies -

subsection (2), at line 40:

applies to a person if the Minister:

(a) have regard to:

(i) the person's past criminal conduct; or

(ii) the person's general conduct;

is satisfied that the person is not of good character -

Then if one goes to 502, section 502(1) provides:

If:

(a) The Minister, acting personally, intends to make a decision:

(ii) under section 501 -

.....

in relation to a person; and

(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificte - - -

GAUDRON J: That is what I was thinking of, "as part of the decision".

MR BASTEN: It becomes part of the decision if done.

GAUDRON J: That is to say, it is really hard to isolate one from the other and just - well, it is arguable that it is hard to isolate one from the other and to say if it was an irrelevant consideration it did infect both.

MR BASTEN: Well, we would say, with respect, that it would not infect both because the character material which was put before the - - -

GAUDRON J: It may not infect the character decision as such but the discretion to cancel and - at least the discretion to cancel, it would seem to infect that.

MR BASTEN: We would say that the discretion to cancel is really unchallengeable if the character decision is valid. There is no other factor which is - - -

GAUDRON J: Well, the Minister may be quite - there may be other things then. The fact that a Minister finds a person of bad character does not automatically result in cancellation. There is a discretion to be exercised, having regard to the purposes and objects of the Act, perhaps, and the nature of the power. One would have thought the nature of the power might actually circumscribe the discretion - - -

MR BASTEN: No doubt about that. I do not doubt that, your Honour, but the question is whether - well, may I put it this way, that the way your Honour is putting it to me is quite different from the way it is put in the application for the order nisi. There are numerous sub-grounds, all of which we have addressed in the written submissions, and I will not take your Honours to them. If your Honours were minded to let this matter go up, then we would respectfully suggest that it should be perhaps either the subject of stated questions under section 18 or otherwise dealt with in a manner which limits what grounds we have to address.

GAUDRON J: I think that problem could be dealt with by inviting Mr Hurley to reconsider the grounds and listing it for a directions hearing before a single Judge at an appropriate time and on your application, could it not?

MR BASTEN: Well, we would wish to have an opportunity to do that to deal with the other grounds which are not addressed by the matters which your Honour has been raising with me.

GAUDRON J: There does seem to be some point in some of the other grounds though, as well, and it would be difficult to restrict it. I mean, I was thinking there might be the need to change the emphasis somewhat but I think there is a point there about criminal conduct as distinct from criminal record. There is a point, I should have thought, about he being the only one of thes group of criminals to be considered for this treatment.

MR BASTEN: Your Honour, can I just address those two? Firstly, at page 141, the first minute that goes to the Minister. The criminal record is set out but then at 142 there is discussion of the nature of the conduct. So, we would respectfully say that although Mr Hurley suggests otherwise, the conduct itself was expressly put to the Minister. We do not have any reasons in this case as to - - -

GAUDRON J: You do not say who was armed, who of the - - -

KIRBY J: You see, the possession of the prohibited drug, for example, sounds a serious offence and, yet, if you know that it was a small quantity of marijuana in prison, it takes on a different complexion, hence - - -

MR BASTEN: May do.

KIRBY J: - - - the distinction between the criminal offence and the criminal conduct.

MR BASTEN: Well, I did not understand that it had been put in that way though. I mean, I think your Honour's questions illustrate that the matter at large is being reformulated as we go. These were not the arguments put my friend in his written submissions. We have not heard him orally.

KIRBY J: What is your submission in relation to the suggestion that the Republic of Vietnam would not receive this man, given that he has been away from Vietnam for 20 years and, presumably, has fled from there 20 years ago? I mean, what happens if they will not take him? He is a stateless person then, is he? Just put him on the high seas.

MR BASTEN: No. Your Honour is asking what will happen to give effect to the order in substance. We would say that risk is not a question which goes to the power to make the order.

GAUDRON J: It certainly goes to the discretion.

MR BASTEN: Yes.

GAUDRON J: And it is certainly a matter, one would think, that was relevant to the exercise of that discretion.

MR BASTEN: All that was put - this is a person who was given an opportunity to make submissions about this matter and did not avail himself of the opportunity and has given no reason why he - - -

GAUDRON J: That does not excuse the Minister from acting in accordance with law, if he has failed to act in accordance with law.

MR BASTEN: I do not doubt that, your Honour, but the material which is now put on is many years old which suggests that there may be a problem is simply not up to date and there is no indication that the Minister, firstly, would not have been aware of that material but, secondly, would not have taken it into account in an appropriate manner. I mean, it is all speculation. I understand what your Honours are putting to me and I certainly do not wish to say anything else about whether there is an arguable point. I am really just trying to see if it is possible to restrict to a manageable basis the grounds which we say are beyond - - -

KIRBY J: I think you have made that point and I think Justice Gaudron has indicated that a procedure will be adopted.

MR BASTEN: Yes. Well, all I am saying is that is all I am seeking to do now. I am not seeking to - - -

GAUDRON J: Yes, with a somewhat different emphasis, some of those points may well be - - -

MR BASTEN: Well, I hear what your Honour says.

GAUDRON J: Yes, but it is a question - there may be a need to reformulate it.

MR BASTEN: Yes.

GAUDRON J: Well now, Mr Hurley, you have heard what has been said, have you not?

MR HURLEY: Your Honour, if I can say two things. The first thing relates to estoppel that was canvassed between the Bench and my learned friend. The second special leave question that the Court considered a moment ago raised the role of section 43(6) of the AAT Act as deeming the decision of the AAT of June 1998 - - -

GAUDRON J: Well, I do not think it does raise that, does it, do you think?

MR HURLEY: I hear what your Honour says. The second point I would seek to address the Court on is that in the conclusion of our submissions we sought an order that if this Court was minded to grant an order nisi, that the decision under review be - as part of that, the Court direct that the grant of the order nisi operate as a stay.

GAUDRON J: Yes. You do not resist that, do you? You cannot resist that?

KIRBY J: This is the stay of the removal of the applicant from Australia?

MR HURLEY: No, your Honour, a stay of the decision to cancel his entry permit. There are three decisions: the decision - - -

KIRBY J: But what would be the effect of this?

MR HURLEY: It would revive the permanent - his lawful status that he had the moment before the decision was made.

KIRBY J: He committed a very serious offence. He served his time there but he is now subject to a ministerial decision which, at this stage, has not been set aside. I would have thought it may be a reason for endeavouring to give some expedition to the hearing of the matter but I would not be minded, for myself, to set aside the Minister's decision.

GAUDRON J: I do not think a stay does have that effect, I am sorry to say. I think the only operation of a stay, really, is that the decision stands but action cannot be taken to enforce it. I think this is a - - -

KIRBY J: You are wanting us to actually give him - the visa has been purportedly cancelled. You would be wanting us to give a permanent visa to him and that is not something that can be done. It is too late to stay it. It has been done.

MR HURLEY: Your Honour, the Court has a power under Order 55 rule 7(1) - - -

GAUDRON J: Yes, but I do not think a stay - one realises one has the power and, for my part, I would be minded to exercise it but I do not believe it operates in the way you say it does. All it does would prevent the Minister taking any action to give effect to the decisions relevantly. It would prevent him having him expelled from the country.

KIRBY J: But if you get the order nisi then, presumably, you would be entitled to bring some motion separately and differently, perhaps in Sydney, which is not going to hold up our list today.

MR HURLEY: Yes, your Honour.

KIRBY J: You can then refer the Court, as then constituted, to any relevant authorities and the sections of the Act, and that will be dealt with on its merits. I do not think it should hold us up today.

GAUDRON J: The Minister is prepared to undertake that this man will not be removed from the country pending - - -

MR BASTEN: That is so. He has not been removed while these various proceedings have been pending.

GAUDRON J: And will not be?

MR BASTEN: And will not be.

GAUDRON J: Yes. I do not think a stay would give you any more than that. You now have an undertaking which is probably more effective than a stay. Now, did you want to say anything further about the costs of the special leave?

MR BASTEN: No, your Honour, no, not in the circumstances

GAUDRON J: The special leave application is simply refused. There will be no order for costs.

The application for order nisi will result in the grant of an order nisi in terms as sought but not including a stay, that matter being dealt with by the Minister's undertaking.

Mr Hurley, I think you might well review the grounds of your application and see where they are going and how they can be perhaps put into more manageable categories.

Mr Basten will have leave to apply on three days notice for directions in that regard. You may find it convenient to talk to Mr Basten about - - -

MR HURLEY: Yes, your Honour.

GAUDRON J: Of course, you will have to give further 78B notices, I imagine. Thank you.

MR BASTEN: I think my friends wants to know if your Honours were going to deal with the costs of the order nisi.

GAUDRON J: Yes. The costs of the order nisi will be costs of the proceedings with respect to it. Because this would normally be a chamber matter, I think I should certify for the attendance of counsel. Is there anything else with respect to those costs?

MR HURLEY: No, your Honour.

GAUDRON J: Very well. Call the next application.

AT 11.50 AM THE MATTER WAS CONCLUDED