Akpata, Ex parte - Re MIMA A94/2002 [2002] HCATrans 379 (12 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A94 of 2002

In the matter of -

An application for Writs of Prohibition and Certiorari and Mandamus, an Injunction and Habeas Corpus against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

STEPHEN OGHO AKPATA

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 12 AUGUST 2002, AT 10.05 AM

(Continued from 19/7/02)

Copyright in the High Court of Australia

MR B.M. O'BRIEN: Your Honour, I appear on behalf of the prosecutor. (instructed by Hamdan Lawyers)

MS S.J. MAHARAJ: If it please your Honour, I appear for the respondent. (instructed by Sparke Helmore)

HIS HONOUR: Now, I have received counsel's written submissions and I am approaching the matter on the basis that this is an application for final relief in the first instance, that is so I see what we are doing. In other words, you want orders absolute?

MR O'BRIEN: Yes.

HIS HONOUR: Yes. Yes, Mr O'Brien.

MR O'BRIEN: If I may take your Honour to the affidavit of Elizabeth May Reed sworn on 17 July and they are in exhibit - - -

HIS HONOUR: So the first affidavit you rely on is Elizabeth Mary Reed?

MR O'BRIEN: Is the affidavit of Elizabeth Mary Reed.

HIS HONOUR: Of?

MR O'BRIEN: Sworn on 17 July and in exhibit EMR1 - - -

HIS HONOUR: Just a minute. What affidavits have you filed?

MR O'BRIEN: Well, my client, as I recall, filed an affidavit some time ago. We are not relying on that affidavit.

HIS HONOUR: Yes, I am just trying to get the record in order.

MR O'BRIEN: Yes. The affidavits which we will be relying on are the affidavits sworn by Elizabeth Mary Reed on 17 July and our own affidavit of Mr Akpata sworn on 23 July. There is a further affidavit from Fortress Akpata. It is a short affidavit and it amends - - -

HIS HONOUR: 25 July, yes.

MR O'BRIEN: Yes, that would be right. It amends in a minor degree one of the facts set out in the affidavit of Mr Akpata. They are the affidavits upon which we intend to rely.

HIS HONOUR: Right. Now, any additional affidavits you will be relying on?

MS MAHARAJ: No, your Honour.

HIS HONOUR: Neither of you have any objections to the other's affidavits?

MR O'BRIEN: No.

HIS HONOUR: All right. Yes.

MR O'BRIEN: If I could take your Honour to exhibit EMR1, which is in fact a bundle of documents, which would appear to be the bundle of documents that was before the Minister when the Minister made his decision. I will not take your Honour to all of those documents, but briefly it begins with the prosecutor's application for a parent visa. Then that is followed by a letter dated 26 February 2002 from a David Kilsby, Assistant Director of Character and Entry Security Section, and it is addressed to the prosecutor and it advises the prosecutor that the Minister is considering refusing the prosecutor's application for a visa under section 501(1) of the Migration Act.

It also encloses - and this appears on page 93 - the page numbering seems to be a bit odd. They seem to go backwards rather than forwards, but it appears to enclose an extract from section 501(1) of the Act and extracts subsections (1) through to (12).

HIS HONOUR: Yes, I have that.

MR O'BRIEN: Then following that there is a notice of visa refusal under section 501(1) of the Migration Act and it is stated that it is delivered by hand and it is dated 13 June. That is merely a letter informing the prosecutor the result of the Minister's decision. Then following that there is a document called "Issues for Consideration for Possible Visa Refusal under subsection 501(1) of the Migration Act" and this document is a number of pages long and goes into some 60 numbered paragraphs.

Now, at the end of it there is Part E, the decision, and there are a set of four alternatives. I will not take your Honour through each of those alternatives, but three of those alternatives have been crossed out and the Minister has signed the fourth alternative and dated it 11 June. There the decision of the Minister is:

I reasonably suspect that Mr Akpata does not pass the character test and Mr Akpata has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(1) OF THE ACT TO REFUSE THE VISA, so I hereby refuse the visa.

Now, it would appear - and I take it that the respondent is inviting the Court to infer - that the Minister based his decision on the matters and factors that are set out at length in the document headed "Issues for Consideration". Now, in my written submissions, your Honour, I describe this document as the memorandum and if I may, for the sake of brevity, do likewise now. It is the prosecutor's case that in the letter of 26 February he was not told - before I get to that point, may I take your Honour just for the sake of completeness to section 501F of the Act. I think your Honour is familiar with this, but 501F(3) states:

If:

(a) the person holds another visa; and

(b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to cancel that other visa.

At the time the Minister made his decision on 11 June the prosecutor held another visa, being a bridging visa, which was not, and we concede this:

a protection visa nor a visa specified in the regulations for the purposes of this subsection -

So that bridging visa was automatically cancelled. As a consequence and, as I think your Honour is aware, under, I think, section 189 of the Act, or by a combination of sections 13 and 14 - your Honour will recall that section 13 defines a lawful non-citizen and section 14 defines an unlawful non-citizen. A lawful non-citizen is a non-citizen who holds a visa and an unlawful non-citizen is anyone who is not a lawful citizen. Section 189(1), as I think your Honour is aware, empowers any officer who "knows or reasonably suspects" - empowers and requires that that officer knows of:

a person in the migration zone . . . is an unlawful non-citizen, the officer must detain the person.

And that detention took place on 30 June.

Now, the letter of 26 February did not inform Mr Akpata that if the visa was refused he would be immediately subject to detention and, indeed, the letter by inference led to the opposite conclusion. In so far as the letter extracted as an attachment only section 501 and not section 501F, or any other provision, it led Mr Akpata to the conclusion that the consequences of the only matters which the Minister had power to affect the applicant was in relation to his application for a parent visa under 501. In the document which I have described as a memorandum there is no reference, your Honour, drawing the Minister's attention to the fact that if he does refuse there will be immediate incarceration, nor does it direct the Minister to any factor that may be relevant to the applicant in respect of that incarceration.

In the affidavit of 23 July the prosecutor states that had he known that that was a consequence that would flow from the refusal, he would have sought legal advice and, if so advised, he would have placed the following information before the Minister. The information is summarised in paragraphs 4 through to 10 in terms of the financial impact which incarceration would have on him and his family - and I will not take your Honour through those paragraphs now unless your Honour requires me to - and then in paragraphs 11 to 14 the prosecutor gives some indication of some psychological material which he may well have, if so advised, put before the Minister.

In that respect, if I could just draw your Honour's attention to a report prepared by a Richard Balfour which formed part of the material that was before the Minister at the time the decision was made. It is a rather lengthy report and it is designated as schedule item H to the affidavit of Elizabeth Mary Reed. I will not take your Honour through that report but I would ask your Honour to have a look at it. It there sets out the history of the prosecutor's personal history and, indeed, some of the psychological factors that have affected his life in recent times.

It is the submission of the prosecutor that the failure to, one, inform the prosecutor that one of the consequences of a refusal of his visa application would be a loss of liberty and, two, the failure to seek from the prosecutor material or submissions in relation to that loss of liberty constituted a denial of natural justice and also a failure by the Minister to take into account a relevant consideration. In relation to the denial of natural justice, I refer your Honour to the authorities which I have set out in my written submissions and, in particular - - -

HIS HONOUR: Now, I see your client has not arrived yet.

MR O'BRIEN: No, he has not.

HIS HONOUR: Can you see what is happening, Ms Maharaj? Yes, Mr O'Brien.

MR O'BRIEN: Thank you, your Honour. Now, I refer to a number of authorities. I refer to the decision with which I think your Honour is familiar, namely Mahon v Air New Zealand Limited, in paragraph 6. I have referred to the decision of the New South Wales Court of Appeal in Parker v Director of Public Prosecutions. I have referred also to the decision in Re Minister of Immigration and Multicultural Affairs; Ex parte Miah, with which your Honour is also no doubt familiar. Then there is the very recent decision of this Court in Muin and Lie which was handed down last Thursday. Now, if your Honour requires me to go through those decisions, I will.

HIS HONOUR: What do you say you get out of Muin and Lie?

MR O'BRIEN: Well, not much more than what one gets out of Miah and in so far as the majority - I think a majority of 4:3 - held that the adverse material on which the Tribunal relied in Muin, not bringing that material to the attention of Muin was a denial of natural justice. For the reasons set out in, I think, pages 44 and 45 of the judgment of his Honour Justice McHugh, the circumstances fell significantly short of the circumstances that arose in Miah. So, given that it was albeit a close decision, nonetheless it does set a higher threshold or, may we put it the other way, a lower threshold in terms of natural justice.

Basically the principal authority upon which we would rely and which we say in no material respect is distinguishable from the case at Bar is the decision of the New South Wales Court of Appeal in Parker. That case, your Honour may recall, was an appeal from the Local Court of New South Wales to the District Court of New South Wales from a non-custodial sentence imposed by a magistrate. I am informed that my client will be here in two minutes.

HIS HONOUR: Yes, Mr O'Brien.

MR O'BRIEN: When the matter came before the District Court, his Honour in the District Court took the view that not only should the appeal succeed in terms of reduction of sentence, the sentence should be increased and, in fact, a custodial sentence should be imposed, but that was never mentioned to either the appellant or his counsel. I think it was by way of prerogative relief.

HIS HONOUR: Yes, it would have been, I think.

MR O'BRIEN: Then by way of appeal from the Supreme Court to the Court of Appeal, the court unanimously held that in such a case the judge was under a duty to inform the appellant that he was minded to impose a custodial sentence and invite counsel to put submissions in that respect. It is our submission that in terms of natural justice it is more important to be advised of adverse consequences that may affect the applicant than to be advised of adverse material that may be taken into account and determinative of the decision.

We also, your Honour, rely as a second element too, in this respect, that independent of the rules of natural justice we say the Minister was under an obligation to inquire as to what impact incarceration would have on the applicant and his family. In turn, we refer to the passage in Craig v South Australia with which your Honour is no doubt familiar. It is extracted in paragraph 9 and I will not take your Honour through it now.

Assuming the prosecutor is successful in demonstrating that there has been either a breach of natural justice or that the Minister failed to take into account relevant considerations, the prosecutor is confronted with section 474 of the Migration Act. Now, that provision, your Honour, is, in my respectful submission, a standard privative clause of a type which the courts have been considering and have been the subject of decisions going back now over 50 years in which I think there are at least 10 reported cases of the High Court decisions. That clause, as your Honour is no doubt aware, is also the subject of some 20, 30 or 40 decisions in the Federal Court just this year alone. Now, obviously it is not practical to take your Honour to those Federal Court decisions, so in my submissions I have confined myself to an analysis of the High Court decisions.

The case as to why the rules of natural justice would not apply, in my submission, rests on an application on what is known as the Hickman conditions. As your Honour will glean from my written submissions, the burden of the argument which the prosecutor is putting forward is that the Hickman conditions do not apply to a breach of natural justice or to a failure to take into account relevant considerations.

Now, in the course of the written submissions a distinction was developed between ambit defects and procedural defects. After writing those submissions and on further reflection, in my submission, the analysis ought to be slightly different. If I may take your Honour to the various passages in Hickman and Murray. Firstly, as a useful starting point I will take your Honour to the passage from the judgment of his Honour Justice Dixon in Hickman [1945] HCA 53; 70 CLR 598 at 615. For the sake of brevity I might just, rather than read the whole passage, read the proviso:

provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.

Then if your Honour would turn to page 616 of Hickman. There at the about the middle of the page his Honour states:

In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall . . . be regarded as invalid.

HIS HONOUR: It is "shall not be regarded as invalid."

MR O'BRIEN: Sorry, "shall not be regarded as invalid." Then on page 617 in the second sentence of the second paragraph his Honour says:

Accordingly, I think that under the Coal Mining Industry Employment Regulations the decisions of a Reference Board should not be considered invalid if they do not upon their face exceed the Board's authority and if they do amount to a bona fide attempt to exercise the powers of the Board and relate to the subject matter of the Regulations.

Now, it is clear from that passage that his Honour intended the expression "they do not upon their face exceed the Board's authority" to be equivalent to the third of the three Hickman conditions, which is "and that it is reasonably capable of reference to the power given to the body", because you will see in that passage his Honour has quoted the first and second Hickman conditions but has substituted for the third Hickman condition the expression "they do not upon their face exceed the Board's authority".

Furthermore - and if your Honour requires me to I will take your Honour to them - your Honour is no doubt aware of the decision in this Court in R v Coldham; Ex parte AWU [1983] HCA 35; (1983) 153 CLR 415 and at 418 their Honours, the then Acting Chief Justice Sir Anthony Mason and Justice Brennan, when referring to the Hickman conditions at about 10, 12 lines from the top of the page, indicate, if your Honour picks up the concluding expression in that sentence:

and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) -

there their Honours would be construing what his Honour Sir Owen Dixon said in Hickman. Also if your Honour would go to O'Toole v Charles David Pty Limited 171 CLR 232 at 287. There in the middle of the page in the joint judgment of Justices Deane, Gaudron and McHugh their Honours say:

The second and third conditions are related. Both involve objective tests. The requirement that the award -

and this, your Honour is no doubt aware, is a reference to section 60 of the Conciliation and Arbitration Act -

relate "to the subject matter of the legislation" will ordinarily be satisfied if the purported award deals with industrial matters. Putting to one side breach of the rules of procedural fairness, the requirement that the award be "reasonably capable of being referred to the power" will be satisfied if, on the face of the record, it appears that the award was made by the Commission in purported exercise of the power of conciliation or arbitration conferred by the Act.

Then if your Honour would also go to the judgment of his Honour Justice Dawson at page 305 in that same decision. There, having quoted at length from a passage of the decision of R v Commonwealth Industrial Court Judges; Ex parte Cocks, his Honour then says on the top of page 305:

Thus, without taking into account any constitutional restrictions, s. 60 will preclude an award from being called in question provided that it is the result of a bona fide attempt to exercise the power to make it, it relates to the subject-matter of the legislation and it does not on its face go beyond the power.

Thus again, there is a reference to the decision of their Honours Sir Anthony Mason and Justice Brennan in Coldham and he refers to the same page that I took your Honour to a moment ago. So, in my submission, there can be little doubt that the expression "if it is valid on its face" substitutes for the expression "if it is reasonably capable".

HIS HONOUR: Are there other decisions linking the notion of bona fides and the Hickman formulation to natural justice?

MR O'BRIEN: Not that I am aware of - not in the High Court at least.

HIS HONOUR: Other than those two passages in O'Toole we have just looked at?

MR O'BRIEN: Yes, the ones we have just looked at - not that I am aware of, your Honour. If I could now take your Honour back to Hickman and again back to page 617 and to the very passage I read to you a moment ago. Before I do, does your Honour need me to remind you of the facts in Hickman?

HIS HONOUR: No.

MR O'BRIEN: The next passage is:

This view, however, leaves the question whether the decision now impeached really does bear on its face an appearance of an exercise of the power bestowed, or whether from its very nature it is an attempt to go beyond that power.

As your Honour is aware, his Honour concluded that on its face it revealed an excessive power. The relevant passage there is to be found at page 618. If I could refer your Honour to just below the middle of the page, his Honour says:

On the face of those regulations it is clear enough that the words "in the coal mining industry" are words of final limitation upon the powers, duties and functions of the Boards.

In my submission, in Hickman his Honour progresses through a process of interpretation which he elaborates in more detail in Murray.

May I take your Honour then to the decision of the High Court in R v Murray; Ex parte Proctor [1949] HCA 10; 77 CLR 387 and again to the judgment of his Honour Justice Dixon. In my written submissions I extracted at length one passage from that judgment beginning at the bottom of page 399 and going over to the middle of page 400. It may assist if I - - -

HIS HONOUR: This is paragraph 22 of your submissions.

MR O'BRIEN: Yes, that is correct, your Honour. If I may just proceed through that passage again, will it assist your Honour?

HIS HONOUR: No, I can read it to myself.

MR O'BRIEN: His Honour describes the process whereby one applies a privative clause of the type found in section 474 by way of two steps. The first step is simply an application of the Hickman conditions. Then he goes on to say there is a second step and that second step is:

in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action.

In my submission, what his Honour is in effect saying is that if you satisfy the Hickman conditions or if in the application of the Hickman conditions you discover that on the face of the decision it is apparent that there is an error in that the decision-maker has either acted beyond power or the decision-maker has failed to observe some condition in respect to the exercise of the power, that does not necessarily conclude the question.

You then must go on and determine whether the failure to satisfy that condition or the failure to act within the limitations describing the ambit of your power are such that they are intended to be fatal, they are intended to be in effect mandatory as opposed to directory. In my written submissions I refer to a passage on page 399 wherein his Honour raises by analogy the distinction between directory and mandatory provisions, about two-thirds of the way down on page 399 in Murray.

In our submission, the Hickman conditions only apply at the first stage and they only apply in order to determine whether on the face of the record the decision of the decision-maker contains or reveals an impeachable error. If the record discloses an error which would otherwise be impeachable or which would otherwise enable the prosecutor to impeach the decision, then the Hickman conditions have no application, because on the record the error is disclosed. Then the Court must consider whether that error was so fundamental in terms of the legislative scheme that it ought to be fatal or whether that error was in terms of the legislative scheme meant to be capable of being cured by way of the privative clause, which is a second stage.

What we say in this case is that when you look at the Minister's decision, which is the memorandum, and indeed the letter inviting the prosecutor to comment, it is apparent on the face of the record that there has been no compliance with the rules of natural justice. It is apparent on the face of the record that the Minister has failed to take into account relevant considerations, at which point the Hickman conditions have no further work to do. They have been applied and on the face of the record you have not satisfied the third Hickman condition. The Court then moves on to the second stage, namely: is that failure so fundamental that it cannot be cured by the privative clause?

It is our submission that that failure is fundamental. If your Honour concludes that natural justice is required by reason of the consequences which flow from a refusal in these circumstances to the prosecutor in so far as that consequence relates to a loss of liberty, if your Honour comes to that conclusion, then, in my respectful submission, it must follow that the Parliament intended the observance of those procedural requirements to be fundamental because we are dealing with the question of liberty.

In addition to that consideration, in my submission, if one puts the contrary view, namely that if one concludes that the language of section 474 operates to exclude the application of the rules of natural justice, then the legislation must have one of two operations as a matter of logic. It must either state inapt that the rules of natural justice do not apply and that the decision-maker is free to ignore them - - -

HIS HONOUR: The Act does say that in some provisions, does it not, in 494 or thereabouts? There are some specific exclusions of natural justice, are there not?

MR O'BRIEN: I am not too sure if - - -

HIS HONOUR: Maybe they have gone. I think they have gone.

MR O'BRIEN: I think there are arguably under the amendments that came into force on 3 July, the procedural fairness amendments, that one may mount such an argument, or arguably one can mount such an argument, but those amendments came in after this decision was made. This decision was made on 11 June and I do not know that my friend is contending they have a retrospective operation. So, other than by way of illustration of some general principle, those amendments would not have much application here. I am sorry I cannot assist your Honour as to the provision your Honour is thinking of.

In any event, we are not dealing with a specific provision here; we are dealing with the language of section 474 which, on the one hand, is couched in extremely broad and general terms and which is, if read literally, sweeping in its operation and which has consistently for over 50 years never been read literally. That is the case both within this country and, as his Honour Sir Owen Dixon points out in both Hickman and Murray, that is also the position in relation to similar clauses to be found in unitary systems such as the United Kingdom - such as it used to be. If the terms of 474 were to be read as enacting a provision which is to the effect that the rules of justice do not apply, that a decision-maker in making a decision under this Act other than where there is an explicit requirement, the decision-maker is free to ignore those rules and is therefore free as a matter of law to act unfairly. That is one possibility.

The other possibility is that the Act does not enact that the decision-maker is free to ignore the rules of natural justice. The decision-maker may be bound by the rules of natural justice and he is meant to comply with the rules of natural justice but it falls to the decision-maker to determine what the contents of those rules are in any specific case before him or her and it falls to the decision-maker to determine how those rules apply in any particular situation. So that any error which the decision-maker may make in relation to the application of those rules becomes an error within jurisdiction rather than an error as to jurisdiction.

In my submission, your Honour, it can be only one of those two possibilities; only one of those two possibilities could apply. If it is the second possibility, then I would draw your Honour's attention to a passage in the judgment of his Honour Justice Dixon in Hickman in which his Honour says at about the middle of page 618 in the second paragraph:

Now, I think that it is plain that the Coal Mining Industry Employment Regulations do not mean to give either to the Central Reference Board or to the Local Reference Board any power whatever to determine the ambit of the expression "coal mining industry" or the extent of their own jurisdiction as governed by that expression. It would be unconstitutional for the Regulations to attempt to give to either Board any judicial power, and, although that is not a decisive consideration, it is a guide to the real meaning of such provisions as reg. 8 and reg. 14.

In my submission, what his Honour is saying is that if you give to a decision-maker the power to interpret the legislation so that errors as to the application of the law to the set of facts are now errors within jurisdiction as opposed to errors going to jurisdiction, then that would involve an exercise of judicial power of the Commonwealth and which would have to reside exclusively in a Chapter III court. So, in my submission, one ought to be minded not to construe section 474 in such a way that it would in effect involve the decision-maker interpreting and applying the rules of natural justice so that errors are errors within jurisdiction as opposed to errors going to jurisdiction.

To interpret the rules of natural justice as not applying at all so the decision-maker was free to ignore those rules and as a matter of law to act unfairly would be arriving at a conclusion or an interpretation of section 474 which, without clear language, the Court ought to hesitate before coming to such a conclusion. It is my submission that, unless the Parliament states that it either intends or it is indifferent to a decision-maker acting in a way which is inconsistent with the rules of procedural fairness, then the Court ought not to adopt an interpretation which would lead to such a conclusion.

Furthermore, I would draw your Honour's attention to various provisions in the Act itself which stipulate that applications are to be dealt with fairly. There is the heading in Subdivision AB to Division 3 of Part 2 of the Act, which is described as a "Code of procedure for dealing fairly, efficiently and quickly with visa applications". There is section 353(1) of the Act which states that:

The Tribunal -

in this case the Migration Review Tribunal -

shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

In section 397(2)(a) of the Act:

The Principal Member -

of the Tribunal -

is responsible for:

(a) monitoring the operations of the Tribunal to ensure that those operations are as fair, just, economical, informal and quick as practicable -

Finally, in sections 420(1) and 460(2)(a), equivalent provisions to 353(1) and 397(2)(a) are enacted in respect to the Refugee Review Tribunal. So on the basis of those provisions, one could not conclude that Parliament intended that section 474 was to permit a decision-maker to act free of the rules and to ignore the rules of natural justice and hence as a matter of law to act procedurally in a manner which is unfair.

There is a further reason, in our submission, why the rules of natural justice and defects arising from a failure to comply with the rules of natural justice are not affected by section 474 in this case. I refer in particular to the fact that, in order for my client to lose his liberty, two decisions have to be taken. One decision is the actual decision, namely the refusal decision, under section 501(1) and the second decision is the deemed decision under section 501F(3). I have set that argument out in my written submissions rather than take your Honour through it again, if you have any difficulties with that argument or if you want to address any particular issues in relation to it, but I will - - -

HIS HONOUR: Could you look at paragraph 5 of your opponent's written outline. Do you disagree with that summary? I just want to make sure you are at issue with one another.

MR O'BRIEN: As I understand paragraph 5 of my friend's written submission, on my reading it appears to be a summary of - - -

HIS HONOUR: I know. That is why I want to work out whether you are at issue with one another. Has she correctly understood your argument?

MR O'BRIEN: Yes, I think that is a reasonable - - -

HIS HONOUR: It looked to me as if she had, but I just want to make sure you - - -

MR O'BRIEN: Well, nothing leaps off the page that says this is not the argument I put; it just puts it much more succinctly than I was able to do. So I do not know if I can assist your Honour further on that point. They are my submissions.

HIS HONOUR: Thank you. Yes, Ms Maharaj.

MS MAHARAJ: If it please your Honour. As part of the Minister's submissions, we advance three core propositions. The first proposition is that, leaving to one side whether implied procedural fairness applies in this case or not, we say that on the facts of this case procedural fairness was given by the Minister. Second, we say that section 474 on its terms is inconsistent with the implication of any requirement to give procedural fairness. Third, we say in any event, breach of any obligation to give implied procedural fairness cannot be beyond the protective effect of the privative clause, section 474 in this instance.

By way of elaboration of the first point, your Honour, which is that on the facts of this case procedural fairness was given, we say that Direction 21 accompanied the notice of intention to cancel. This document went to the prosecutor. My learned friend has already taken your Honour to the notice of intention dated 26 February 2002.

HIS HONOUR: Yes, I have it.

MS MAHARAJ: Your Honour will see on the first page, second-last paragraph of that document, is the reference to the Direction 21. We have furnished your Honour's associate with a copy of that direction and I will return to that document shortly because that document agitates or raises various matters which are relevant for the purposes of making the refusal decision.

HIS HONOUR: The attached Direction 21 at the moment is not reproduced, is that right?

MS MAHARAJ: That is correct, your Honour, but we have furnished your Honour's associate with a copy of Direction 21.

HIS HONOUR: Have you seen this, Mr O'Brien?

MR O'BRIEN: I have seen a copy of it this morning, your Honour.

HIS HONOUR: That should become exhibit A.

EXHIBIT: Exhibit A.....Direction 21

MS MAHARAJ: Whilst your Honour has that document to hand, it may be convenient if I travel through that rather quickly. Your Honour will see that that is a direction under section 499 of the Migration Act and it is a direction which is given to officers exercising the power under section 501. Case law indicates that the direction is binding upon the Administrative Appeals Tribunal but the direction, however, is not binding on the Minister himself.

Your Honour will see from the first page that the preamble states the object of the direction, particularly the second paragraph where the national interest issues are noted. I will not dwell on the preamble but if I could ask your Honour to go to page 2 of that document, which is in fact numbered page 7, under the heading "PRELIMINARY". Does your Honour have that portion?

HIS HONOUR: Yes.

MS MAHARAJ: Your Honour will see that the direction consists of two parts. Part 1 provides directions on the application of the character test and the second-last sentence in that paragraph, Part 2 provides directions on what these considerations are and the weight to be given to them. So your Honour will see that Part 1 directs attention to the consideration of the character test and if the non-citizen does not pass the character test, then the decision-maker is to exercise the discretion to consider whether to refuse or cancel a visa taking into account what the Minister has called the primary and other considerations. Part 1, your Honour will see, notes the application of the character test.

Of relevance is towards the bottom of page 7, subparagraph 1.3 which deals with paragraph 501(6)(a), the substantial criminal record, which was the issue in consideration in this case. If I may just invite your Honour to go to page 9, paragraph 1.10 deals with:

In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:

and there are various subparagraphs listed which are fairly self-explanatory until your Honour comes to page 12, which is Part 2 of the exercise of the discretion, which is if one is satisfied that the character test is not passed, then one descends into the discretion noted in Part 2.

Your Honour will see various matters noted there, weight of considerations in paragraph 2.2, and the primary considerations noted in paragraph 2.3. The three matters noted in paragraph 2.3 is "the protection of the Australian community", "expectations of the Australian community" and in (c) your Honour will see "the best interests of the child". By way of elaboration, your Honour will see from page 12 onwards further guidelines provided as to what the protection of the Australian community means, on page 13 the seriousness and the nature of the conduct, et cetera.

If I could take your Honour to page 13, subparagraph (a) notes "The seriousness and nature of the conduct" and a discussion follows until page 15, where your Honour will see in subparagraph b the "likelihood that the conduct may be repeated" and in subparagraph (c) on page 15, two-thirds of the way down the page, issues of general deterrence. Page 16, elaboration of the expectations of the Australian community and in the middle of the page, "The best interests of the child", which was a matter looked at by the Minister in this case.

The paragraphs that appear under the heading "The best interests of the child" on page 16 your Honour will see directs attention at paragraph 2.14, the second-last sentence, which is:

that the best interests of another child may point towards visa refusal or cancellation.

2.15 In general terms, the child's best interest will be served if the child remains with its parents.

Right at the bottom in subparagraph (b), the issue of separation and reasons for separation are addressed and page 17 deals with other considerations.

Your Honour will see that the submission which was put to the Minister - and I understand that my learned friend has called the document "memorandum" - follows a consideration of the issues which was raised by Direction 21 that was given to the prosecutor. What is more, your Honour will also see that the Direction 21 issues were also raised by the prosecutor himself in the letter that he furnished to the Minister in response to the notice of intention to cancel.

In broad terms, your Honour, the latest affidavit filed by the prosecutor complains that there was not the ample opportunity to address the financial impact on the family, the psychological impact on the prosecutor and his family, and the ability of the prosecutor to prosecute his High Court application. But if your Honour looks through the submission of the prosecutor to the Minister, all these three matters were addressed by the prosecutor in his submissions.

HIS HONOUR: Where do I see the High Court litigation addressed?

MS MAHARAJ: That appears in a couple of places, your Honour, if I - - -

HIS HONOUR: I can see one on the first page, under "Immigration History".

MS MAHARAJ: Yes, your Honour.

HIS HONOUR: Yes, under "Previous Decisions".

MS MAHARAJ: In the submission to the Minister, in paragraph 56, about eight or nine pages into the document - - -

HIS HONOUR: Yes, I see.

MS MAHARAJ: - - - the last three lines is the High Court appeal.

HIS HONOUR: Is there any reference in this material we are looking at now to his bridging visa?

MS MAHARAJ: Yes, your Honour, there is, not in the terms that the bridging visa would be cancelled, but by way of reciting history, it is noted in the submission to the Minister that the prosecutor held a bridging visa.

HIS HONOUR: Where do we see that?

MS MAHARAJ: Your Honour will see that on the issues for consideration, the submission to the Minister, first page, paragraph 2, second entry: bridging visa be granted 30 July 1999.

HIS HONOUR: Thank you. Now, it seems to be said against you, firstly, that these submissions do not draw specifically to the Minister's attention the consequences for the bridging visa of this adverse decision, in particular, the triggering of the detention requirement.

MS MAHARAJ: Yes. Your Honour, our response to that is that there was no obligation on the Minister to advise of the immediate consequence, which was the cancellation of the bridging visa and immediate detention. Natural justice at its highest - and your Honour will be familiar with the authority of Kioa v West where Justice Brennan spoke about an obligation in natural justice is to highlight to an applicant all adverse matters that would be taken into account for the purposes of making the decision.

The decision in this particular case, under section 501, was the refusal decision in relation to the character test. Consequent on that refusal, what follows is detention and consequent removal. So the issues for consideration are issues that go to the character test, first of all, and, second, the removal or the possible removal of a prosecutor from Australia to another country. What my learned friend is complaining about is the immediate machinery, or the administrative arrangements which are made under the legislation in order to effect the removal decision.

So, in short, your Honour, what we say is that procedural fairness, which is the obligation to give natural justice in the terms spoken of by my learned friend, cannot be implied into the legislation because the express terms of section 474 speak against it. In any event, we say, if there is a content to be given to the implied procedural fairness, then that content can be no higher than the Minister was under an obligation to ask the applicant to respond about issues going to the character test, and other issues which would result in his ultimate removal from Australia. In any event, the third limb to our argument is such a breach, if there was such a breach, is within the protective effect of the privative clause.

If I may come back to the submissions, your Honour, the second core proposition we had highlighted was that section 474 on its terms is inconsistent with the implication of procedural fairness. In support of that contention, we raise some very short matters. First of all, your Honour will see from the revised explanatory memoranda, at paragraph 16 - and this document has been handed to your Honour's associate - and the second reading speech which introduced section 474, it is clear that the Parliament intended to widen the lawful operation of decisions and, secondly, that the grounds on which decisions could be challenged in the High Court and the Federal Court were narrower. So that was the express intention of the Parliament.

Your Honour will see that the terms of section 474 is wide, as wide as the clause that was under consideration in Hickman and Proctor. We say that because of the express terms of section 474, there cannot be an implication of procedural fairness. Thirdly, by way of historical relevance, your Honour will see that the Parliament had in fact constricted the judicial review powers of the Federal Court by amending the old section 476 - subsection (2), in particular - and that is the provision that your Honour may have had in mind when putting the proposition to my learned friend, where 476(2) had taken away the power of the Federal Court to intervene with decisions where there had been a breach of natural justice.

What your Honour sees now is that the Migration Legislation Amendment (Procedural Fairness) Act 2002, which commenced operation, as my learned friend said, in June of 2002, further constricted the ability of the courts to judicially intervene into the administrative decision-making processes. So, in short, your Honour - - -

HIS HONOUR: Now, this latest Act, does that impinge on this present matter?

MS MAHARAJ: It does not, your Honour. The only reason that we have referred to that in our submissions is simply to highlight to your Honour that there is a history where the Parliament has evinced a clear intention to constrict judicial intervention into the administrative decision-making process, by first - - -

HIS HONOUR: What is the title of the 2002 Act?

MS MAHARAJ: It is Migration Legislation Amendment (Procedural Fairness) Act 2002.

HIS HONOUR: Has it a number?

MS MAHARAJ: It is 60 of 2002. It is in our list of authorities.

HIS HONOUR: Thank you.

MS MAHARAJ: By way of elaboration of our third core proposition, where we said that, in any event, if there was a breach of any duty to give implied procedural fairness it is within the protective effect of the privative clause, we say that the Hickman exceptions, the three exceptions that my learned friend has taken your Honour to, are exhaustive and authoritative, and nothing has fallen from the High Court to erode that principle. The three exceptions your Honour would be familiar with, which is noted on page 615 of Hickman, is that there is "a bona fide attempt to exercise" power and as long as the exercise of power is "reasonably capable of reference to the power given" and "that it relates to the subject matter of the legislation", then the privative - - -

HIS HONOUR: "Bona fide" might catch up actual bias, I suspect.

MS MAHARAJ: Yes, your Honour.

HIS HONOUR: That is not this case, but it might be meant to catch actual bias. When they talk about some aspects of natural justice in some of the later cases, that would be one aspect, I suppose.

MS MAHARAJ: Yes. There is authority to that effect in the Federal Court by Justice Mansfield in one of the decisions. Now, we also say that my learned friend has not pointed to any authority on point to the effect that implied procedural fairness - a breach of such an obligation is not protected by a privative clause as wide as section 474. Your Honour will also recall that the leading decisions that have fallen from the High Court, which is Proctor's decision, Hickman, and Project Blue-Sky, all deal with a reconciliation by the courts of an express provision like section 474 and other express provisions within the statute.

What my learned friend is endeavouring to do in this debate is to take that intellectual exercise a step further, which is try to reconcile section 474 by way of some implied procedural fairness obligation. We just say simply that there is no authority to take the debate to that level. The authority that we have taken your Honour to in our written submissions is the decision of Justice Gyles in NAAX's Case, where his Honour said that implied procedural fairness is not beyond the protection of a privative clause. We have also said in our written submissions that that decision is under appeal. The Full Court of the Federal Court has heard the matter. It is expected that the decision would be handed down sometime this month.

In relation to the statutory construction exercise, if we could say a few more short words, your Honour, is that what my learned friend has endeavoured to do in this debate is to try to merge section 501 with 501F(3) in order to make it some sort of a composite decision. We say that these two particular provisions constitute two separate processes and, as we say in our written submissions, 501F(3) is a consequence that follows by way of operation of law.

We also say that there is no obligation on a decision-maker to advise in respect of the consequences in law of a decision that may be made. That is the reason why I have mentioned Kioa v West, which is - the highest the content of the natural justice obligation goes to is to advise a prosecutor of adverse relevant matters which would be considered in the course of making a decision.

The other thing is that what my learned friend complains about really is the immediate detention which is effected under section 189. In reality and in legal terms, if there is any debate to be had, it ought to be a debate about section 189, but my learned friend has sidestepped section 189, because 189 would, of course, be subject to the privative clause as well, and, in turn, endeavoured to import some sort of a natural justice obligation into section 501 by making 501F(3) process - - -

HIS HONOUR: This is not necessarily against you, but I am not sure that 189 in fact involves the making of a decision because there is no choice; there is an obligation on the officer to detain. There is no decision to be made.

MS MAHARAJ: Yes. Your Honour has touched on an issue which is under debate and under consideration before - - -

HIS HONOUR: And, therefore, that officer would not have made a decision of an administrative character. He would not be administering anything.

MS MAHARAJ: Yes. Your Honour has touched on an issue which is being agitated before the Federal Court.

HIS HONOUR: Is that one of the questions in the Federal Court case?

MS MAHARAJ: It is in another decision, your Honour. The action number is 135 of 2002. It is a matter which has been heard by Justice Merkel a couple of weeks ago and his Honour is about to hand the decision down. In that particular matter, his Honour considers the nature of the section 189 exercise of power and section 196. The Minister's contention in that particular case has been that section 189 is a privative clause decision, and that perhaps section 196 may not be, because it is an operation of law provision.

HIS HONOUR: Section 196?

MS MAHARAJ: Section 196, your Honour. Section 196 is triggered into operation after a person is taken into detention in 189.

HIS HONOUR: Anyhow, it does not seem to be suggested in this case that if 189 - and it seems doubtful to me at the moment - if 189 is an administrative decision, there does not seem to be any room for any exercise of procedural fairness under 189.

MS MAHARAJ: That is correct, your Honour. That is what our submission would be. Just by way of - - -

HIS HONOUR: Recognising that, I suspect - that is why Mr O'Brien has focused on the other end of the scale, as it were.

MS MAHARAJ: Yes. I think that is putting succinctly what I was endeavouring to put to your Honour, which is that my learned friend by his submissions has sidestepped the debate about 189 and tried to introduce natural justice into 501 by importing 501F(3) into 501. We just say that that is not a natural exercise that flows from the face of the legislation. Just by way of completing that answer - - -

HIS HONOUR: What was the citation of that reserved decision of Justice Merkel in the Federal Court? What is the identification of it?

MS MAHARAJ: It is 135 of 2002, your Honour. Your Honour will see that - - -

HIS HONOUR: Is that in the Melbourne Registry?

MS MAHARAJ: Adelaide Registry, your Honour.

HIS HONOUR: Adelaide, is it?

MS MAHARAJ: Yes, your Honour. That was just heard a couple of weeks ago and his Honour said he will try to hand his decision down as soon as possible. Just to complete an answer that I was giving to your Honour earlier, in relation to section 189 there is a decision of his Honour Justice Heerey in the matter of Turcan [2002] FCA 397. His Honour ruled in that case that section 189 was a privative clause decision. That decision is on appeal to the Full Court.

HIS HONOUR: That is [2002] FCA 397?

MS MAHARAJ: Yes, your Honour.

HIS HONOUR: Thank you.

MS MAHARAJ: Your Honour may be assisted in that debate. There is another decision in the matter of Nguyen v The Minister [2001] FCA 887 and the decision came down on 11 July 2001. It deals with section 253(3), which is detention consequent upon a deportation order being made, and the court held in that case that natural justice ought to be granted. That is a decision against the submissions that I am making but I - - -

HIS HONOUR: Is that a Full Court decision?

MS MAHARAJ: No, your Honour, that was a single judge decision. It is a decision of his Honour Justice Sackville. There is another decision of Justice Heerey in the matter of Grech (1991) 105 ALR 107 at 111, where Justice Heerey was of the view that to import natural justice before the power of detention could be exercised was a "fanciful" concept, because of the scheme of the statute.

HIS HONOUR: Now, the relief that is being sought here - yes, I had better ask Mr O'Brien about that.

MS MAHARAJ: Yes, your Honour, and if your Honour - - -

HIS HONOUR: No, I had better do it now. Now, I have a draft - I think we looked at this last time.

MR O'BRIEN: Yes.

HIS HONOUR: This is a document, 18 July?

MR O'BRIEN: Yes, that is right.

HIS HONOUR: It is couched in the terms of an application for an order nisi. I think we are really considering an order absolute today.

MR O'BRIEN: Yes, that is right.

HIS HONOUR: What is the relief?

MR O'BRIEN: Prohibition, certiorari - - -

HIS HONOUR: Yes, but prohibition - - -

MR O'BRIEN: Certiorari, habeas corpus, and also mandamus. There is a problem, however, with mandamus, because the way it is couched at the moment, if we were successful, this decision would be sent back to the Minister. That would probably be inappropriate. It would be better if a fresh mind came to look at it, so we would ask that the matter be sent back to a delegate of the Minister, if that is permissible.

HIS HONOUR: You are looking, in the first instance, are you, at the decision of the Minister of 11 June 2002?

MR O'BRIEN: Yes.

HIS HONOUR: Which appears - - -

MR O'BRIEN: Which appears in EMR1.

HIS HONOUR: Yes. It is at the very end of that annexure, is it not?

MR O'BRIEN: Yes.

HIS HONOUR: Namely:

I reasonably suspect that -

the person in question -

does not pass the character test, and . . . has not satisfied me that he passes the character test -

and the visa is refused. Then what decisions, if any, are being challenged to found the injunction? That goes to the detention, does it not?

MR O'BRIEN: It does.

HIS HONOUR: And that goes to 189 and 196.

MR O'BRIEN: Yes. The detention would be unlawful in the event that the decision was quashed.

HIS HONOUR: Would thereafter be unlawful - - -

MR O'BRIEN: Would be thereafter unlawful.

HIS HONOUR: - - - if the decision was quashed. But you are not challenging the anterior steps that led to the present detention, as it were?

MR O'BRIEN: No. We do not suggest that the present detention is unlawful.

HIS HONOUR: Unless you can make out your attack on the 501 decision of 11 June.

MR O'BRIEN: Well, we would treat the 501 decision as capable of being set aside, but not void ab initio.

HIS HONOUR: Yes. I understand what you are saying. Does that clarify things?

MS MAHARAJ: Yes, your Honour, it does. Just by way of closing, if I could just repeat the core propositions. The first one was that implied natural justice could not be imported in view of the express terms of section 474 in the historical legislative basket of facts that it sits within. Secondly, even if implied procedural fairness can be imported, we have said, on the facts of this case, it has been complied with. Thirdly, even if implied procedural fairness can be imported, a breach of that obligation is not beyond the protective effect of the privative clause.

Finally, if I could just note that my learned friend has noted Parker's Case is the principal authority. It is a custodial sentence case and we would say that it muddies the debate and does not assist a consideration of the issues which your Honour is faced with. In relation to the authorities regarding Miah and Aala's Case, we have made the point that a privative clause was not under consideration by the High Court, therefore, the assistance one derives from those authorities is limited.

Fourthly, we say that my learned friend did rely on certain headings for the purposes of interpretations. The Commonwealth Acts Interpretation Act would not enable one to have recourse to the headings as an aid to interpretation in view of section 13 of that particular Act. Unless your Honour has any further questions, those are our submissions.

HIS HONOUR: Thank you. Yes, Mr O'Brien.

MR O'BRIEN: Just one point. In relation to the use of the explanatory memorandum and the second reading speech, it may assist your Honour if I draw your Honour's attention to a passage in the judgment of his Honour Justice McHugh in Miah. I have the ALR reference.

HIS HONOUR: Yes. That is all right. Just read the reference onto the transcript, if you would.

MR O'BRIEN: In addition, the respondents point to the explanatory memorandum which states the - - -

HIS HONOUR: Which paragraph?

MR O'BRIEN: Sorry. It is paragraph [132] - [2001] HCA 22; 179 ALR 238 at 268 in paragraph [132].

HIS HONOUR: Yes, I have it.

MR O'BRIEN: I will just draw your Honour's attention - I think it speaks for itself.

HIS HONOUR: Yes, thank you.

MR O'BRIEN: I would submit the same would apply in relation - - -

HIS HONOUR: So what really has to be focused on, in the way the case is presented, is the decision of 11 June. If the decision of 11 June attracted prohibition, that would bring about a termination of further detention.

MR O'BRIEN: Yes.

HIS HONOUR: That is the way to look at it, I think. Whether the decision of 11 June can be set aside through prohibition and certiorari depends upon your submissions as to procedural fairness.

MR O'BRIEN: Yes.

HIS HONOUR: Which are disputed. Assume that you are right about that, that would then engage the debate about section 474, and that engages Hickman - on which you are both at issue as to what Hickman means in this case. That is what it all comes to, I think, does it not?

MR O'BRIEN: Plus the side argument that a procedural fairness requirement attaching to section 501F(3) is not protected by section 474.

HIS HONOUR: Say that again?

MR O'BRIEN: Apart from those, there is an alternative argument that if the procedural fairness requirement attaches to, in effect, the deemed decision under 501F(3), then it not being a protected decision - being a deemed decision - then there is the argument that section 474 just simply does not apply.

HIS HONOUR: Yes. What do you say about that so-called side issue?

MS MAHARAJ: In relation to that, your Honour, we have said 501F(3) is an operation of law mechanism - automatic consequence of the decision in 501. Therefore we say, as a matter of principle, natural justice does not apply. Secondly, we have said that the character of 501F(3) is, because it is an operation of law consequence, that there is no obligation on a decision-maker to play legal adviser - to put it in short, to advise a prosecutor of all the consequences that would take place upon the decision being made. The third argument, which we put in our opening, was that the relevant considerations under 501 are the character test and the ultimate removal. The machinery provisions about immediate detention, et cetera, are not relevant.

HIS HONOUR: Yes, thank you. Is there anything you want to say in response to that? I think you are both at issue.

MR O'BRIEN: Yes, I think so.

HIS HONOUR: All right. Well, I thank counsel for their assistance in this matter. I will reserve my decision. We will now adjourn.

AT 11.40 AM THE MATTER WAS ADJOURNED