Shahi v Minister for Immigration and Citizenship [2011] HCATrans 266 (26 September 2011)

Last Updated: 28 September 2011

[2011] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M10 of 2011

B e t w e e n -

SAYED ABDUL RAHMAN SHAHI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 26 SEPTEMBER 2011, AT 2.17 PM

Copyright in the High Court of Australia

MS L.G. DE FERRARI: If the Court pleases, I appear for the plaintiff. (instructed by Victoria Legal Aid (Civil Law Section))

MR S.B. LLOYD, SC: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

FRENCH CJ: Yes, Ms De Ferrari. You will need to speak up. I gather the sound system is a little compromised at the moment.

MS DE FERRARI: I will do my best. Your Honour, the case involves a small point of construction of the Migration Regulations 1994, as your Honours will well appreciate. In a nutshell - - -

FRENCH CJ: Just before we get to that, there was a finding against you on a necessary criterion of compelling considerations.

GUMMOW J: Page 68.

MS DE FERRARI: Yes, there was. Your Honours will also see that as part of the special case, the parties have agreed that that finding does not prevent this Court finding a jurisdictional error in respect of the issue that is before the Court. The reason for that, if I can elaborate briefly, is that there is a policy of the defendant, which is not in evidence before your Honours, but there is a policy of the defendants that if the split family stream is satisfied, that compelling circumstances criterion is also satisfied by reason of the strength of the connection between the applicant and the proposer. That, I believe, is the reason why the defendant has conceded that that criterion, which is another criterion set under the criteria to be satisfied at the time of decision, does not govern this case if the plaintiff is right about the construction of clauses 202.211 and 202.221 such that the applicant is always in the split family stream. The policy would then, in respect of that compelling circumstances criterion, deem that it be satisfied.

FRENCH CJ: Yes, all right. Thank you.

MS DE FERRARI: That, in a sense, leads into the fact that these criteria really are a mesh of a number of subclasses that have existed for a long time, since 1994, and then the split family stream, as it is colloquially known, which was inserted by an amendment in 1997, and really it is the question of how the maintaining in a sense of what is criterion 202.221 under the heading “Criteria to be satisfied at time of decision”, how well it works, if at all, with respect to the split family stream that has been inserted in these subclasses.

In a nutshell, if I can, in a sense, start from the defendant’s submission, the defendant says, well, when you look at the clear scheme of every part – Part 2 in Schedule 2 and how it is divided into “Criteria to be satisfied at time of application”, “Criteria to be satisfied at time of decision”, and the other five subparts, it all hangs together beautifully if the Court adopts the construction that the Minister contends for, but on the construction of the plaintiff, then it becomes a mess because, in effect, clause 202.221 does not have any work to do. Well, not so, but can I perhaps indicate a number of other places where it does not at all hang all beautifully together.

It might perhaps be most convenient if your Honours look at the plaintiff’s annexure of the statutory provision and regulations. At page 8, your Honours, there is subclass 200 which deals with refugees and if your Honours look at clause 200.211 which is set out under the heading “Criteria to be satisfied at time of application”, your Honours will see that it has some similarity with clause 202.211, but it has an extra paragraph under subclause (1), namely (aa) of “meets the requirements of subclause (1A)”. Then if your Honours have regard to subclause (1A) which is set out below that, your Honours will see that that is a subclause that is satisfied once, it is satisfied at all times. It would not be capable of varying if, according to clause 200.221 which is set out in the next page under “Criteria to be satisfied at time of decision”, and again this is exactly the same terms of clause 202.221, it is evaluated a second time as to whether it continues. So here is an example where something is met once and once and for all.

Similarly, in subclass 201 – this is the “In-country Special Humanitarian” subclass – at page 12 of that annexure, exactly the same. Your Honours will see under 201.211 again there is a paragraph (aa) and again that refers to subclause (1A) which is always met. If it is met, it is always met. In subclass 203, which starts at page 21 of that annexure, your Honours will see – I beg your pardon, in subclass 202, which is the global humanitarian subclass which is at issue in this case, at page 19, your Honours will see at subclause 202.312 that is a secondary criteria, so it is the criteria to apply to secondary applicants, set out under the heading “Criteria to be satisfied at time of application”. It refers to:

The proposal made under clause 202.225 in respect of the relevant person who satisfies the primary criteria –

Here something is said under “Criteria to be satisfied at time of application”. It picks up a criterion in respect of the primary applicant set out under the criteria to be satisfied at the time of decision and if your Honours go to - - -

FRENCH CJ: So your proposition is that there are a number of examples of one stands for all criteria which are nevertheless picked up under the word “continues” in the criteria to be satisfied at the time of decision?

MS DE FERRARI: That is the case in respect of subclause 200 and subclause 201. Subclause 202, which I just took the Court to, is perhaps an example of mixing up timing issues in respect of different clauses to be satisfied in different criterias and to finish that point, when one has regard to item 1402, which is set out at page 6 of that annexure in subparagraph (3), that provides that an application by a secondary applicant is to be made at the same time as an application for a primary applicant. So, in a sense, one has in respect of a secondary applicant the picking up of time of decision, the time of application, of something that could not be satisfied if one is to give full force to the headings until the time of decision in respect of the primary applicant even though both applicants apply at the same time.

The broader point, your Honours, is that consistently what this Court has said in Berenguel, in my submission, is in each case the question of looking at the particular clause which prescribes one of the criterion to be satisfied for the grant of a particular visa and determined on proper construction, having regard to the context, being informed, to some extent, by the heading insofar as they refer to time of application and time of decision, informed by that but not dictated, what exactly does that criterion require.

In this case, when one looks at the criterion – the issue really is to start from criterion 202.211. I have asked if it could be handed up, a document which effectively sets out possible rewriting of those subclauses in a convenient place, but in the first page of that handout there is set out clause 202.211 where I have indicated how, in my submission, the various verbs that appear there refer to timing issues informed by the fact that that clause appears under the “Criteria to be satisfied at time of application”. Clause 202.221 is set out at the bottom of that page and does not have any timing indications other than the fact that it might be so by reason of using the verb “continues” in the present tense and being set out under the heading, “at time of decision”.

In short and consistently with, as your Honour the Chief Justice has indicated, in this case the plaintiff contends that the requirement in subclause (2) is one that simply is to be evaluated having regard to all of those different points in time and in respect of what is in subclause (2)(c), it requires that the applicant continues at time of application, the time that is fixed up by this quite complex timeline described by this subclause (2), continues at that time of application to be a member of the immediate family of the proposer. If that is the case and everything else is met in subclause (2), then when the delegate considers, as he or she must, clause 202.221(2), then if on a true construction that would only require that the applicant continue to be a member of the family at the time of occupation that is met.

FRENCH CJ: The age limit which is introduced in regulation 1.12AA relating to the definition of “immediate family”, that is the 18-year-old cut-off, that came in in 1997, is that right?

MS DE FERRARI: Yes, it did.

FRENCH CJ: Were these regulations in that form then?

MS DE FERRARI: No, they were not. A number of changes have been made since.

FRENCH CJ: But was the immediate family requirement in place before that age cut-off was introduced?

MS DE FERRARI: No, that was part of a package. The definition of “member of the immediate family” in that regulation 1.12AA was part of the introduction of the split family stream in 1997.

FRENCH CJ: With the criterion for continuing to be a member of the immediate family?

MS DE FERRARI: In subclause (2)(c), yes, and with the language in the clause 221.

FRENCH CJ: Yes.

MS DE FERRARI: The language in clause 221 is just a remnant of how the class provided before any introduction of the split family stream.

FRENCH CJ: That is what I am wondering. There is a certain hangover from previous drafting.

MS DE FERRARI: There is hangovers everywhere.

GUMMOW J: Yes. The problem about 221 is it says “the criterion”, you see.

MS DE FERRARI: Yes.

GUMMOW J: In fact, it has been split. It is now (1)(a) or (b).

MS DE FERRARI: Yes.

GUMMOW J: That is not accommodated in the drafting of 202.221 which assumes singularity.

MS DE FERRARI: No, it does.

GUMMOW J: You say that is an error of some sort in the drafting of the regulation when the new structure was put into subclause (2)?

MS DE FERRARI: What actually occurred, your Honour, is that prior to this split family stream being introduced, what your Honour sees in 211(1) was actually split into two – it was provided in two subparagraphs.

GUMMOW J: Where do we see it? Where do we see the text?

MS DE FERRARI: The text, your Honours will see it at page 5 of the plaintiff’s submissions. In paragraph 20 your Honours will see that in fact there was a clause – I have set it out for all of them, but it is in – subclass 202 is on page 6. It was a clause 202.211 and there was a clause 202.212. Then what was – clause 202.221 your Honours will see actually referred to criteria plural and the two clauses. Now, what happened as part of the 1997 amendments is that those two clauses - - -

FRENCH CJ: I am sorry. What we are looking at on page 6 is what was there in 1994, is that right?

MS DE FERRARI: Yes, that is right.

FRENCH CJ: Yes.

MS DE FERRARI: I am sorry, I did not make that clear.

FRENCH CJ: No, no, you have it on the previous page - I just wanted to make sure I was understanding it.

MS DE FERRARI: So, in effect, there were two criteria and 221 referred to “criteria” – plural - but as part of the amendments that became put into the one subclause or paragraph of subclause (1) and then paragraph (b) was introduced. So the explanatory statement accompanying those changes then simply refers to the amendment - well, repeal, as substitution of 221 as being an amendment of a consequential nature to deal with the fact that what was previously two criteria have become one. That is as far as the explanatory statement goes.

It might be that one construction is that there is only one criterion, and that is criterion subclause (i) of 211, and it is a criterion that is split in an alternative way and you either meet one or you meet the other, and it probably is the case that once you meet one you are in that stream for all purposes, including for the purposes of all applicants under the secondary criteria.

But that, in a sense, just then turns the issue to what is meant by “meets” in the present tense under “time of application” heading, “the requirements of subclause (2)”, and that is what I sought to indicate by indicating on the first page of that handout how I saw all the different times – there are a number of times that are to be considered in subclause (2) and how I think that they do work, and there are at least two – and it is apparent on that page – there are at least two, if one just deals with it by the present tense, which are capable of bearing over time, or to put it how the defendant puts it, fixed only by reference to the fact that – of the heading “time of application” your Honours will see the present tense is in paragraph (b)(ii) “the proposer is”; and then again the present tense appears in paragraph (c) “the applicant continues to be”.

All of those, in my submission, when one looks at subclause (2) just require the setting out of that timetable and finding that at the times that are so identified those particular criteria are met, and if they are met then nothing except the force of the criteria – the force of the heading “Criteria to be satisfied at time of decision” would dictate that you have to re-evaluate, and re-evaluate as at time of decision, circumstance, something that has already been evaluated within that quite complex timeline as to when different things have to - - -

FRENCH CJ: Well, to try and simplify it a little bit, that will probably mean I make an error, but if one looks at 202.221 and relates it to (2)(b)(ii) you say that means that the applicant continues to be a person who was a member of the immediate family of the proposer on the date of application for that visa?

MS DE FERRARI: Of the 202 visa?

FRENCH CJ: Yes.

MS DE FERRARI: Yes.

FRENCH CJ: In other words, you are reading 202.211(b)(ii) into 202.221, it is an event or a circumstance of the past and it is to be read as continuing in existence as such?

MS DE FERRARI: Yes, in a sense, but my submission is that that is supported by the fact that everything in subclause (2) is at a time in the past or a time - - -

FRENCH CJ: Yes, I understand, I am just trying to get the - - -

MS DE FERRARI: Yes. I contrast that by the fact that when the drafter wanted to be precise about the fact that a continuing relationship was a time of decision circumstances the drafter did so in the criteria – in the secondary criteria and your Honours will see that by looking at 202.311 and 202.321.

HAYNE J: Well, can the point be put this way, Ms De Ferrari, that the phrase “continues to satisfy” engages with so much of 202.211 as is cast in the present tense? It does not engage at all with so much of 202.211 as is cast in the past tense as, for example, “was a member of the immediate family of the proposer on the date of grant”, et cetera.

MS DE FERRARI: I think, your Honour, that is how the defendant puts it, that anything that is in present tense in that subclause is favourably engaged by continuing - - -

FRENCH CJ: Well, do you not say it is logically excluded – having regard to what Justice Hayne put to you – that your argument would be that that past event is logically excluded from the coverage of 202.221?

MS DE FERRARI: Yes, I think I am getting to the same point by saying that “continues” does not travel all the way down to subclause (2) of 211.

HAYNE J: I may be misunderstanding something, Ms De Ferrari, and can I just make sure that I am not? What would cut your client out would be if at the time of decision it was relevant to observe that he was now an adult. That would cut him out, if that was relevant. Is that right?

MS DE FERRARI: Yes, that would - - -

HAYNE J: That would be relevant because at the time of decision he would not fall within the particular definition of “member of the family” because he would be over 18.

MS DE FERRARI: His mother would not fall within - - -

HAYNE J: The mother would not be a part of the immediate family. Is that right?

MS DE FERRARI: That is so by reason of him having gone over the age of 18.

HAYNE J: Now, the references to being “a member of the immediate family of the proposer” in 202.211(2)(b) are all, are they, in the past tense?

MS DE FERRARI: They are all in the past tense, yes. The relevant one in this case is (ii) because the plaintiff has a 866 visa, but, yes, they are all cast in the past - “was” at the time of applying or grant of that visa to the proposer.

HAYNE J: Therefore, it “continues to satisfy” in 202.221 is read as applying only to so much of 202.211 as is cast in the present tense. You win, do you not, or what have I missed?

MS DE FERRARI: No, it applies to paragraph (c), which the defendant says is in the present tense and really should be read as “continues to be a member of immediate family”.

HAYNE J: I see.

MS DE FERRARI: What I was indicating is that there is a present tense in paragraph (b) as well in the sense of “the proposer is” at the time of application “the holder of a Subclass 866” visa. So applying and dropping down in a sense the continuing effect one will read that as the proposer continues, or has been, the holder of a Subclass 866 visa, which simply does not make sense because the purpose there was simply to fix a time when you applied for that visa - - -

GUMMOW J: Can I just be simple minded for a minute? Clause 202.221 assumes a singularity of criteria, does it not?

MS DE FERRARI: Yes, it does.

GUMMOW J: The only singularity of the criterion is in 211(1)(a) – 202(1)(b) has a collection of criteria as we have been exploring.

MS DE FERRARI: Yes, in which case then the 221 only applies linguistically to the singular criterion that can be found in - - -

GUMMOW J: If you can find one. The only one you can find is (a).

MS DE FERRARI: Yes, your Honour.

GUMMOW J: That is not your problem, (a).

MS DE FERRARI: No, it is not the plaintiff’s problem or the plaintiff’s mother’s problem. Your Honours, I think I have indicated the scope of - - -

GUMMOW J: If 202.221 was to pick up a selection of criteria it does not differentiate between them with any meaning.

MS DE FERRARI: That is so, it does not.

GUMMOW J: You have to somehow set about putting (a), (b), (ba), (c) and (d) through some sort of grinder.

MS DE FERRARI: It tries to, yes, and it does not do so. If the Court pleases.

FRENCH CJ: Yes, Mr Lloyd.

MR LLOYD: I am afraid I have to start with an apology which is that I somehow managed to entirely forget to do my written outline of oral submissions, but I can indicate that I will be addressing five topics. One is the text; secondly, structural arguments; third, a review of the legislative history and extrinsic materials; fourthly, a consideration of the general policy underlying the divisions and, finally, a consideration of the authorities.

GUMMOW J: How about starting with the language?

MR LLOYD: Yes, your Honour, that is my first point, the language. So coming then to the question of the text - - -

GUMMOW J: This material does not have to go through the Parliament. It can be disallowed, can it? It does not have to go through the Parliament.

MR LLOYD: That is true of every regulation.

GUMMOW J: Your client has every opportunity to draft this clearly.

MR LLOYD: Sorry, your Honour?

GUMMOW J: Your client has every opportunity to see that this is drafted clearly to implement any policies you are talking about.

MR LLOYD: I understand that, your Honour.

GUMMOW J: It does not go through the furnace of the legislature.

MR LLOYD: That is so. If I can take the Court to a version of 202.2, the current version, one place it may be found is in the special case book starting on page 58. We say that 202.211 is a criterion that is met by either - - -

GUMMOW J: Wait a minute. It is some sort of collective noun, is it?

MR LLOYD: Yes, your Honour, it is clear -and I will take your Honour into the legislative history in due course – it is clear beyond possible argument that that is what the legislature had in mind because there used to be two criterion - - -

GUMMOW J: The what had in mind?

MR LLOYD: Sorry?

GUMMOW J: You said the legislature.

MR LLOYD: Well, the maker of the regulations had in mind, because the provision used to, as my friend indicated, have two “time of application” criteria at 211 and 212 and 202.221 used to say “The applicant continues to satisfy clauses 211 and 212”. When these changes were brought in, so it was all put into one item, it was changed into this form and when I show your Honours how it was done in relation to all the other humanitarian visas, which were all done at the same time in the same way, it is clear that the intention was that the person has to be a member of the family unit at the time of decision.

GUMMOW J: No matter what the delay in reaching the time of decision.

MR LLOYD: Yes, precisely so, because this is a particular class of visa that is quite susceptible to having delays because it is potentially subject to a gazetted limit of visas of this class and one thing that the Minister can do in relation to such visas is rather than say, “You lose under condition 202.226 because the visa limit has been reached. I can delay you to the next financial year and maybe you will get a visa for the next financial year”.

HAYNE J: So you can do it under the carpet. Is that what you are saying, Mr Lloyd? That is a most remarkable submission to advance. Is that what you are advancing, that this can be done without publicity? That is, you can do it by gazette - - -

MR LLOYD: I am not suggesting - - -

HAYNE J: No, no. Listen to me, Mr Lloyd. You can do it by gazette notice, but by mere administrative fiat you can delay and achieve the same results. Is that the proposition?

MR LLOYD: No, your Honour. That is not the proposition at all. I am just saying that the Court has to, as anyone has to, construe the legislation against all of the provisions. One of the provisions is that this legislation is intended to work with a cap. There is no cap at the moment, but it is intended to work with a cap so one has to at least envisage that there could be delays. In this case, we say, not that it is in issue, there was not a material delay, that there was a nine-month period but things have to be done; people have to go out, interview people. There are a lot of other people in this category. It takes time. There is no evidence before the Court and the Court should not work on the assumption that nine months is an unusually long period of time for this kind of visa class. I leave it there. Coming back to the question of construction, one has, in 202.211, one possibility that in this kind of visa is that if:

(1) The applicant:

(a) is subject to substantial discrimination, amounting to gross violation of human rights -

That is how it is used to be in 1994 when it came in. Then at that time, and for some time later, there was a different visa class, an entirely separate visa class with preferred family arrangements and if you came in on a humanitarian visa there were arrangements to bring in family members. That changed in 1997 to bring the family members in, family members of people who have already got visas, into this class.

So the old (1) was made (1)(a) and then a person could meet this criterion if either (a) or (b) was met and then (b) picks up the criterion in subitem(2), and in subitem(2) one of the requirements is that at the time the sponsor, that is the person who has come to Australia on, relevantly here, a protection visa, or got a protection visa after coming here, so on the date of applying for the protection visa, the applicant for this visa, relevantly the mother of the person who got the protection visa, had to be a member of the family unit at that time.

Then under (c) there is a second point in time when the person has to continue to have been a member. We say it makes no sense to say “continues to be a member”. This is putting aside 221, but just within 211, “continue to be a member” means at some later point in time. So there was a point in time at the time of application of the protection visa. We say that the relevant point in time for assessing whether or not the person continues is, as the structure of the schedule suggests, the time of application for this particular 202 visa.

Then we come to 221 and the applicant has to continue to satisfy the criterion in 211. Now, in the relevant sense, if the person was making a claim on the basis of substantial discrimination then that person would have to show that they are continuing to suffer substantial discrimination up to the time of the decision. If they are making a claim, not on the basis that they suffered substantial discrimination, but just on the basis that they are a member of the immediate family of the proposer, then that has to have continued, we say, up to the time of application.

If, as my friend suggests, the headings do not govern these matters, then that would be equally true for the heading presumably, “Criteria to be satisfied at time of application”. That being so, there would be just a criteria that you have to have continued to be a member of the immediate family for some unspecified period of time after the person put in their protection visa.

Now, we say on that view unless the Court is going to say that you continue to do it even if it was.....day, then there has to be some point in time when you have to have continued to do it until, we say, there are three points of time. The first one is when the proposer got his protection visa application. The second one in 211(c) is when the visa applicant for the 202 visa put in the application, and the third one is when the decision is to be made on the visa application.

That, we say, gives work for all of them to do and gives meaning to the word “continues” in all of its usages. If “continues” picks up the present tense provisions of 211, it would pick up the “continues” in (2)(c) and we say that would be nonsensical if that did not add some later period of continuation, otherwise it would be doing nothing in relation to that clause. I think my friend’s partial answer to that is, “Well, so be it. It does nothing in relation to that clause.” I will come to that shortly. That is what I wanted to say about the text.

BELL J: Just before you move from the text, just going to 202.221 and this question of satisfaction of “the criterion”, as distinct from criteria, where one is looking at an application that is not under (1)(a) of 211, do you submit that the criterion is meeting the requirements of subclause (2)?

MR LLOYD: In my submission, the criterion is the whole of 211, which is met if you meet, as the language naturally suggests, either (1)(a) or (b). Now, (b) picks up all of the sub-criteria in two. That is how we say it is to be read. In terms of structural arguments, in my written submissions in paragraph 17 I set out a number of features that can be seen in relation to every subclass.

If the Court leaves open the special case book at page 58 one will see that every – and this is obviously only one subclass – but every subclass has a three-digit number and a name. Every subclass has a “.1” after the three-digit number in which interpretation issues are addressed. Every subclass has a “.2” in which primary criteria are set out and those primary criteria are provided for by regulation 2.03, which says – perhaps I could take the Court to that? In my friend’s annexure on page 5 it sets out regulations 2.02 and 2.03. Regulation 2.02 refers to the “Subclass” and the “3-digit” structure. Regulation 2.02(2) says:

a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem –

and then one can see how that is used, for example, in 2.03 where it provides that:

(1) For the purposes of subsection 31 (3) . . . the prescribed criteria for the grant to a person of a visa of a particular class are:

(a) the primary criteria set out in a relevant Part –

Now, that formulation is used for all the things that have to be prescribed for a visa. So one has 2.02(2), the primary criteria, which are divided into criteria to be satisfied at time of application and criteria to be satisfied at time of decision; I will come back to that in a moment. All the subclasses have secondary criteria, “.3” or at least a division available for secondary criteria. All subclasses have a “.4” which deals with circumstances which can be prescribed - are under section 40 and are prescribed by regulation 2.04.

All of them have a “.5” for the duration of the visa. All of them have a “.6” for conditions that must or may be prescribed and all of them have a “.7”. That, we say, is the structure of the provision. Then returning to the significance of the time of application and time of decision criteria, there is in I think what I call the defendant annexure, tab 1, which contains a number of provisions. On page 8 is regulation 2.04, which I mentioned in passing.

BELL J: I am sorry, Mr Lloyd, I just could not hear that? Page what?

MR LLOYD: Page 8 under tab 1 is 2.04, which is how the circumstances are prescribed. Regulation 2.05 (1) and (2) deal with how the conditions are prescribed and 2.05(3) deals with the period for each visa. Then 2.08 I accept, only by implication, but still we say significantly, gives an indication of how the time of application and the time of decision criteria are to be understood and applied. It deals with a situation which can arise under virtually every visa class of somebody who has applied for a visa and while the application is being considered has had a newborn baby when it is being considered. Then there is a provision that the child is taken to have applied for the visa of the same class as the parent and the child’s application is combined with the parents. Then relevantly, under subsection (2):

Despite any provision in Schedule 2 –

which suggests but for this schedule 2 might have done something -

a child referred to in subregulation (1):

(a) must satisfy the criteria to be satisfied at the time of decision; and

(b) at the time of decision must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.

What we get from that is that the regulations do pick up the distinction between time of application and time of decision criteria and provide that in relation to newborns certain time of application criteria are to be made applicable to time of decision, which we say carries the implication that follows from the language and from the structure is that in every other case a time of application criteria is to be decided by reference to the circumstances at the time of application and the time of decision criteria are to be done at the time of decision. That also flows from regulation 2.08AA, perhaps even more clearly, which is on page 11:

(1) Despite any provision in Schedule 2, a contributory parent newborn child who applies for –

certain kinds of visas -

(a) does not have to satisfy the secondary criteria in Schedule 2 that would, but for this subregulation, need to be satisfied –

which again shows that the legislative scheme assumes that, apart from these exceptional circumstances, criteria at the time of application need to be made by reference to the circumstances “at the time of application” and the same for criteria “at the time of decision”. We say that these structural arguments support the construction, we say, that one reads the first “continues” in 211 as being referable to the time of application - you have to still be a member of the family at that time and also at the time of decision.

GUMMOW J: Am I right in thinking you read 202.221 as if it said “The applicant has not ceased to satisfy any of the requirements listed in 211(2)”?

MR LLOYD: Well, continues to satisfy - - -

GUMMOW J: There has to be some change - what are the possible relevant changes in circumstances - (ba) would be one, would it not, “5 years”. Would that be picked up?

MR LLOYD: So on my construction, in relation to 202.211 the only thing that can probably change is either (1)(a), which is there could cease to be discrimination or - - -

GUMMOW J: Yes, of course, that is clear.

MR LLOYD: Or (b), you could cease to be “a member of the immediate family” unit. For example, you could get divorced. If you got divorced in the meantime you would not be entitled to the visa. That is an example, we would say.

GUMMOW J: So it is only (c)?

MR LLOYD: Yes. We accept that the other ones, once met, they remain met. So you would continue to meet them.

BELL J: What do you say, Mr Lloyd, in response to the plaintiff’s submission that there are other means available to the Minister respecting the situation that you just posed, namely, that the person is no longer married to the proposer at the time of the decision?

MR LLOYD: In my submission, I think they have posited that the criteria in .222, .223 and .224 would be relied upon. They all pre-dated any of this whole scheme in relation to the family unit. We say they do not fall under that and the whole point of putting in a continues – if it was sufficient that you were a member of the family unit at the time of application what could have been done in relation to 202.221 was just refer it back to (1)(a), which is done in a lot of instances including, for example, protection visas.

Protection visas make a difference between people who claim to owe protection and people who claim to be families and then somebody who claims to have owed protection has to establish at the date of decision that they were owed protection and someone who just claims to be a member of a family unit. There are different criterion in the criteria to be satisfied at the time of decision, depending upon whether you fell under one stream or the other.

Here, however, we say it is meant to work the same and, as I say, I will shortly be taking the Court to all the other amendments that were done at the same time. What is telling is that there were a number of other humanitarian visas that did not have a condition under the time of decision criteria in the form of you continue to satisfy the first criteria at the time of application.

When this scheme was brought in – the family scheme – in respect of all of those humanitarian classes of visa something was put in at the time of decision saying you had to meet that criterion at the time of decision. So that then means on my friend’s view, people who are humanitarian under 202, they get to bring in their family even if they have got old or they have got divorced or whatever, whereas, if you are say on a camp clearance visa, which I will take the Court to shortly, then people who have come in from a camp clearance visa, which is a visa designed to empty camps of Vietnamese refugees, they do not. We say there is no reason for such a distinction.

GUMMOW J: I think we agreed that, looking at 202.211(2)(a), (b), (ba), (c) and (d), the only element there with a temporal fluidity to it is (c), is that right?

MR LLOYD: That is so.

GUMMOW J: Would it not have been easier to say that the applicant continues to satisfy the criterion in clause 202.211(1)(a) and 202.211(1)(b) insofar as the criterion is membership of family?

MR LLOYD: It would have been more precise, your Honour, but it would not have been easier. In our submission, we say it is clear. The only things that can change have to continue - - -

GUMMOW J: When you say “easier”, we would not be here - - -

MR LLOYD: It is briefer and more succinct. The things that can change have to continue. The things that cannot change you do not have to make special reference to exclude them because they cannot change.

GUMMOW J: What we are told is the requirements in subclause (2), which is the language used in 202.211(1)(b), they are a class that does not have temporal unity about them, whereas to some of them they are fixed, no problem, but as to one of them it is a continuing requirement.

FRENCH CJ: Unless you read (c) as “the applicant continues at the time of application to be”.

MR LLOYD: Yes, we read - - -

FRENCH CJ: If you read it that way, that would then fit in temporally with the rest of them.

MR LLOYD: .....what your Honour, the Chief Justice is asking me.

HEYDON J: I can tell you what he is asking. He is saying that paragraph (c) of 202.211 subregulation (2) is saying at one particular point in time you must be a member of the immediate family. Once you have satisfied that criterion, that, as it were, ceases to have fluidity. It remains true throughout.

MR LLOYD: But the entity does not do anything. You could cross a line - - -

HEYDON J: His point is channelling you really back into 202.211(1)(a) only.

MR LLOYD: The difficulty with that is that if (c) does not have fluidity, then it adds nothing to (b). If the sole question is that you have to at some point in time been a member of the immediate family, that is picked up in (b) in any event. We say what the work that (c) does is that that has to have continued to be the position at the time you have asked for this particular kind of humanitarian visa and then 221 has work to do and says it has to also continue at the time when the decision-maker is making the ultimate decision.

FRENCH CJ: Am I right in saying that (b)(ii) refers to membership of the immediate family at the time of the proposer’s application for a protection visa?

MR LLOYD: Yes.

FRENCH CJ: And (c) refers to the applicant continuing to be a member of the immediate family of the proposer at the time of the applicant’s application?

MR LLOYD: Yes, so relevantly - - -

FRENCH CJ: So they are two different application points.

MR LLOYD: Yes, indeed. So (b)(ii) is the son’s protection visa application, (c) is the mother’s global special humanitarian visa application, time of application, and we say 221 was the time of decision - - -

FRENCH CJ: Yes, I appreciate that. What I was asking you is, is it a reading that is open, and if not, why not, of (c) that it refers to the applicant continuing at the time of application for the applicant’s visa to be a member? The first point was the applicant was a member when the proposer applied. The second point is the applicant continuing to be a member when the applicant applied.

MR LLOYD: That is what we say, your Honour.

FRENCH CJ: So, in other words, if you read (c) as the applicant continues at the time of her application to be, then you have an event which is a fixed – it is defined by a fixed time, that is, the time of her application, which might make it temporally consistent with other criteria, that is all.

MR LLOYD: One gets that, but one only gets it from the fact that we say it is in the criteria to be satisfied at the time of application. That is why we say it is to be done that way. If one says, no, that is wrong and you cannot get anything from the headings, then you do not get anything from the headings and we still say that you have to find some other time, and the only other time is the section 65 time of being satisfied that the criteria are met, which would be the time of decision. Alternatively, we say, which is for the reasons I have already countenanced, that there is a structural significance attached to those headings by the substantive provisions of the regs, like 2.08 and 2.08AA, which shows that they are met – to be assessed by reference to a particular point in time, and that informs the whole structure, not just of this class but of every class.

I think I was still only up to the structural arguments. I had finished going through the main provisions. I think I have already foreshadowed this, so perhaps I should go to it briefly. I have foreshadowed that these visas, not all visas but some visas are in the classes of visas that can be the subject to a gazetted limit. We say that it needs to be construed at least consistent with the fact that it can be subject to a gazetted limit and then the provisions that relate to gazetted limits bear some significance. They are set out in our annexure under tab 1.

HAYNE J: The provision is made in the Act for a criterion limiting the number of visas, see section 39, is that right?

MR LLOYD: Yes.

HAYNE J: And it is spoken of as a criterion as distinct from criteria. The Act itself distinguishes between criteria and what is a criterion, is that right?

MR LLOYD: Your Honour is talking about section 39?

HAYNE J: Section 39. Compare sections 39 and 31(3).

MR LLOYD: Yes. Section 31(3) is a general power to prescribe criteria. Section 39 empowers a provision like 202.226, which is a criterion, which allows for a limit of visas and then section 85, which can be found in our annexure on page 5, provides a mechanism by which a Minister can by gazette determine a limit. Section 86 says what the effect of the limit is, which is, as you might expect, that visas cannot be granted beyond the limit for a particular year.

Sections 87 and 87A we say have some importance, especially 87, because that limit, the limit on the granting of visas, is waived or raised in relation to certain categories of people. It is waived in relation to spouses and dependent children of the visa applicant but not parents of visa applicants. So there has been a policy choice made that spouses and dependent children can still be granted visas beyond the visa limit, but not parents. Then sections 89 to 91 make provision allowing for delays. This is not a case, we say, which is affected by a delay. My friend says it took nine months. There was no evidence to suggest that nine months is slow for this kind of visa and we would not accept that it was.

FRENCH CJ: Incidentally, does 202.226 interact with 39(2), that is to say, the application is treated as not being made once you exceed the limit? That is your cap provision. In other words, it is not a criterion for refusal. It becomes a condition upon which the application is taken not to have been made, if I read 39(2) correctly.

MR LLOYD: Yes, that is so, your Honour.

GUMMOW J: If 39(2) means what it says it means, how does the presence of 39(2) in the Act bear upon these matters of construction in 202.221?

MR LLOYD: All I was saying is that there can be instances where there can be delays and one person goes from one financial year to another and all we say – and even without these provisions the same point can be made. It takes time to make visas. Things happen during that time. Some people might get divorced. Some children might cease to be dependent. Some children, who are proposers, might become over 18. If the visa applicant had applied on the day before his 18th birthday, or at least if the visa applicant’s mother had applied on the day before her 18th birthday and the decision was made two days later, no one could possibly say my client had delayed anything, but we say the position is the same, which is that on the time of decision that there would not have been a meeting of the criteria. There is always line drawing when puts in an age. Eighteen was the age. If one goes above it, the person ceases to be eligible.

I will now move to the question of legislative history because in my friend’s written submissions she seeks some support from that. I would like to hand up some material. One is a case which I will come to later. The other two provisions were made into the 1997 reform, but if I start with my friend’s folder of authorities, there are six tabs in that. Under tab 5 is the explanatory statement for the amendments that brought about the so-called split family regime. On the second page under tab 5, it is not numbered but it is presumably page 2 by reference to the fact that the third page is numbered, there is a document which says:

The purposes of the Regulations are to amend the Migration Regulations to give effect to Government decisions on –

The third dot point is:

enabling permanent refugee and humanitarian visa holders to propose the entry to Australia of members of their immediate family so that the latter are included under the Humanitarian program rather than the Preferential Family program.

That is what I have mentioned earlier. The first dot point under the particular says much the same thing. Then if one goes to what is page 4 of a different pagination, there is a reference there to regulation 14. That is the regulation which made the changes to the subclass 202. In relation to 14.2 it notes that it omits the old 211 and 212, retains the provision, as it were, the substantive provision in the new clause 211:

The new clause also allows a member of the immediate family of a permanent resident who is, or has been, a Subclass 202 or Subclass 866 –

that is a protection visa –

visa holder to be proposed by their spouse, parent or child for a Subclass 202 visa provided that, before the grant of the Subclass 202 or Subclass 866 visa, the relationship had been declared to the Department of Immigration.

What that means is when you apply for your protection visa you have to sort of identify that you have a mother at that point in time. You cannot have found someone who is your mother later. Then under 14.3 it says:

makes a consequential amendment to clause 202.221 to reflect the omission of clauses 202.211 and 202.212 and the insertion of a new clause 202.211.

All it did was it took out the previous reference to two clauses and put in one being the one which has all of these elements, and so it was, we say, clearly intended to be seen as a package at that time. Now, if I can ask the Court to turn over the page to regulation 17. This is the same scheme but just in relation to a different category of visa, a Part 205 (Camp Clearance) visa. Subregulation 17.2 omits some of the olds ones, then:

The new clause also allows a member of the immediate family of a permanent resident who is, or has been, a Subclass 205 visa holder to be proposed by their spouse, parent or child for a Subclass 205 visa provided that, before the grant of the Subclass 205 visa, the relationship had been declared to the Department of Immigration.

Now, the difference between the camp clearance visa and the global special humanitarian visa is that it never had in the time of decision criteria one which said “and continues to satisfy it”, because I think it just dealt with people who are in camps and they obviously are still going to be in camps, I suppose. Anyway, under 17.3:

inserts a new clause 205.221A which requires an applicant who has applied for a Subclass 205 visa on the basis that they are a member of the immediate family of the holder of a Subclass 205 visa, to also be a member of that person’s immediate family at the time of decision.

Now, I am only going to take your Honours to that regulation so you can see how it works in just a moment but I note under regulation 18, the reference to 18.3 also inserts one and it also ends with the idea that you have to be a member of the person’s immediate family at the time of decision. The same is true in relation to regulation 19. It is mentioned at the end of the paragraph dealing with 19.4 and 19.5. The same is true in respect of regulation 20 and it deals with 20.3. The same is true in regulation 21, 21.3. The same is true of regulation 22, 22.4, and probably the rest as well but I stopped looking at that point.

Now, if I turn then to those materials that I just handed up, perhaps the most convenient is the one which starts with the list of provisions of the regulations on the first page. Subclass 205 begins at the bottom of the second page and 211(1) is towards the top of the third page, the time of application criteria, you have to meet either (2) or (3). (2) was the old criteria about what you needed in order to meet it substantively on your own rights and then (3) is the insertion of the same structure of family provision. Here the (b) is simplified:

on the date of grant of that visa, the applicant was a member –

but that is the date of the person who already holds one of these visas. Then (c):

the applicant continues to be a member of the immediate family of the proposer –

same structure. Then under 221A, because there was not any prior requirement to continue to meet some of the other – the 211 - - -

FRENCH CJ: Sorry, I have got a bit lost here. Where are we at precisely?

MR LLOYD: Sorry. We are on the third page of the hand out which begins with the list of the Migration Regulations as a 1 July 1997.

BELL J: Does that begin with on the third line 205.2 “Primary Criteria”?

MR LLOYD: Yes, the third line on page 3.

BELL J: Yes.

MR LLOYD: Then under that there is 205.21 “Criteria to be satisfied at time application” and then that has been changed to be either equal (2) or (3). The subsection (2), that is 211(2), is the substantive requirement and the subsection 211(3) is the split family requirement. That just means you are an immediate family member of someone who already has one of these kind of visas. Then there is “Criteria to be satisfied at time of decision”, 205.22. Then what there is not in this category was one which said – it was not one which already said you had to continue to be satisfied. So what they have done is they have inserted that. So 205.221A:

If the applicant is an applicant who satisfies the requirements of subclause 205.211(3), the applicant continues to satisfy those requirements.

That is because there is not a need to continue to satisfy the 211(2) requirements. So there it is specific, but what is clear is an intention that at the time of decision the people have to be members of the immediate family which is exactly what was said in the explanatory statement. What we say is that when one sees that all of these humanitarian visas were changed at the same time, the structure was the same, if there was already a provision which said you continue to satisfy the time of application criteria, it was considered to be sufficient that that would bring through the sort of temporal position from the time of application to the time of decision. For those humanitarian visas that did not have that, then a special one was put in to make it clear that at the time of decision that is what would have to be met. We say that the legislative history and the extrinsic material also supports the construction relied upon by the delegate.

There is, in our written submissions – I will not take the Court to it – but in paragraph 22 of our written submissions we have extracted out another bit of extrinsic material which is from the first Schedule 2, which is to say, the first time that all of these criteria were first put into schedules is in 1993 and the extrinsic explanatory statement for that material indicated that the criteria to be satisfied at the time of application were intended to be met by reference to that time and the same for all of it, the converse of time of decision criteria. In terms of general policy, it is put against us that the construction that the delegate advanced is plainly unfair. We say that is not so for two reasons. One, it is a matter of a legislative choice or - - -

GUMMOW J: I am not talking about legislatures.

MR LLOYD: Well, a delegated legislative choice. But a policy choice, or put it as you may, it is a proper and valid making of delegated legislation. A choice has been made that a line will be drawn about children, when they turn 18 they cease to be able to do it. One might say that is a bit harsh when the application has taken nine months, but then someone might say it would be harsh if it took three months or two months or two days or why is it 18 and why is it not 19? A line has to be drawn and, in my submission, there is not any innate unfairness.

The second point is that there are instances where the bringing in of the member of the immediate family relies upon either children of the proposer, parents of the proposer or spouses of the proposer, and when I say children it is dependant children. Again, a policy choice, if I put it neutrally in those terms. So it is not all children, dependant children only are able to take the advantage of the scheme and - - -

FRENCH CJ: That is dependant children coming in from outside.

MR LLOYD: So if you are the proposer it is the dependant children of the proposer.

FRENCH CJ: Your dependant child you are trying to bring in.

MR LLOYD: Your dependant child, yes. But if your child is 36 and is the CEO of a company they do not get in under the scheme and so there is a decision to be made as to whether somebody is dependent. Somebody might, during the processing period, cease to meet the criteria for dependency. They would be out. Someone might be divorced, someone might break up. Then the line is drawn. We say that there is no unfairness and in fact we go the reverse and we would say that there would absurdity if the criteria relating to the family had to be met by somebody who had been divorced during the period of time.

I know my friend says other parts of the criteria are sufficiently broad to allow that person to be knocked out, but that is not true for every one of these cases, every one of these humanitarian visas, and we do not accept that the criteria that pre-existed this whole scheme should be construed in some distorted way in order to say well, if you are a divorced person we are going to rule you out on that scheme. But the purpose of having a precise definition of “member of the immediate family” is for that to be applied consistently.

The last heading I was going to address was the question of authorities of this Court. The case I haded up was a decision of this Court in S134 2002 211clr441.html" class="autolink_findacts">211 CLR 441. I do not suggest that it is a burningly relevant distinction or point but the one I was going to make was that before the decision of this Court in Berenguel it had been unexceptionable for the proposition that criteria under the heading “Criteria to be satisfied at time of application” could be so construed and that “Criteria to be satisfied at time of decision” would relate to different time periods. I will refer the Court to paragraph 2 where there is a reference there to:

One criterion to be satisfied at the time of application for a permanent visa –

Then that is set out, and the other passage is in paragraphs 24 to 26 which deals with the time of application and the time of decision criterion for temporary protection visas, and we say that the analysis of the Court at least assumes that the criterion do work in the way that I have suggested that they normally work. It, I note, also provides another example if this unfairness is put against us, somebody could during the course of a protection visa claim at one point be a dependant child, but not be a dependant child by the time of the decision and they would miss out on the secondary criterion. So there is nothing unusual about that.

Then there is a decision of this Court in Berenguel. What we say about that is that it does not, properly read, as it were, completely and generally say that the structure of the schedule and the provisions that rely upon that structure have been misunderstood and misconceived, but rather that in the circumstances of this particular case where there was a particular policy that was apparent from the criterion meant that it needed be construed, not by reference to the heading of the “Criteria to be satisfied at time of decision”. That case, I should say, Berenguel v Minister for Immigration is [2010] HCA 8; 84 ALJR 251. At the end of paragraph [15] it is said by the Court that:

There is no provision otherwise giving substantive operation to the headings in which the designations appear.

The Court on that occasion was not directed to regulations 2.08 and 2.08AA where the substantive provisions of the regulations do make reference to the different time of the criteria to be met. So to that extent that – and it just needs to be noted that the Court did not have its attention drawn to those provisions so that is without my vote on that occasion, but I rectified it - - -

BELL J: Do we have those provisions somewhere to hand?

MR LLOYD: They are in our annexure under tab 1 on pages 10 and 11.

BELL J: Thank you.

MR LLOYD: In our submissions we refer to several other regulations which make the same distinction or at least a premise, we say, upon the structure of the schedule being that time of application criteria are decided by a decision-maker at the time of decision, but by reference to the circumstances at the time of application. In any event, there is then reference in paragraph [21] of Berenguel to the policy, what is seen as supporting the inference of the policy about the currency of the need to have English competency. That is referred to again in paragraph [24]. In that case there was a comparison drawn between the 213 criteria and these other two criteria, 214 and 215, which both referred to the applications containing evidence or being accompanied by evidence. So the point is made in that case that it was to be distinguished from something which suggested there was a time of application. Then there is also the fact that the criterion in that case was, as set out [25]:

“not more than 2 years before the day on which the application was lodged” -

So one goes from the date of application back two years and it is not more than two years before, which then at least leaves open the possibility that it is after, but not more than two years before. So there was a temporal element to that which perhaps also affected the issue. Then at around letter G in paragraph [26] there is a rejection of the proposition which is to the effect of, may therefore, and accepting the headings may inform their construction:

But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application.

That is a narrow exception in relation to that particular part. Then there is a reference there to “unfairness and absurdity”, the point being if the policy behind the provision is that you have English competency when you come here, it does not make sense that it only has to have been six months before rather than at the time of decision. Then there is a reference to section 55, which suggests that the decision-maker should take into account everything up to the date of the decision.

Now, the point we make is it is a different case, but the second point we make is, even it were applicable here it would only help my client and not the plaintiff because what it says is, at its broadest view, just because something is in a time of application criteria, that does not mean it necessarily has to be determined by reference to the time of application. Maybe it needs to be a reference up to the time of decision.

Even if this Court were to apply that principle here, the delegate still will have made the right decision. If one ignores the time of application heading and just looked at criteria 202.211 and said, “Has this person continued to be a member of the immediate family unit?” that would, we say, be referable to the time of decision then which would reveal no error. May it please the Court, they are my submissions.

FRENCH CJ: Thank you, Mr Lloyd. Ms De Ferrari.

MS DE FERRARI: Your Honours, five short points in reply. The first one is in respect of clause 202.226. As the Court has noted, that is authorised by section 39 of the Act and, as the Court has also noted, the effect of subsection (2) of section 39 is the application is then taken not to have been made. There is a real issue about then what section 87 does if that criterion applies in 226, how the Minister is permitted to grant a visa in respect of an application that is taken not to be made because in this case 226 applies to every possible type of visa granted and the type of circumstances in which a subclass 202 visa might be made.

The short point is there are difficult issues of construction about how a limitation on the number of visas which may authorise a situation of delay which by itself means that certain things cannot be met at the time of decision is quite a complex one, but it is relevant in this case that a limit has not been prescribed and so there is no reason to think that delay is an envisaged circumstance in construing clauses 202.211 and 202.221.

The second point is in relation to regulation 2.08, which is perhaps more conveniently set out in the defendant’s submissions at page 9. It is, in my submission, a real question about exactly what the effect of that regulation 2.08 actually is. Your Honours will see on page 9, just above line 10, that there is a first operation of that subclause by which:

the child is taken to have applied for a visa of the same class at the time he or she was born –

So there is a time of application. Then in subsection (2) it is said:

Despite any provision in Schedule 2 . . .

(a) must satisfy the criteria to be satisfied at the time of the decision; and –

That would follow without any despite operation –

(b) at the time of decision must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored –

But such a criterion would have been made applicable by the fact that the child was taken to have applied at a particular time, presumably. That leads me to the third point in terms of what the plaintiff says about the decision in Berenguel. I have set that out in the written submissions. In my respectful submission, the Court there spoke more generally than just speaking about the heading “Criteria to be satisfied at time of application”. It indicated that both headings, “at time of application” and “at time of decision”, did not dictate what followed but informed what followed. That is what the plaintiff is relying upon here in terms of the construction of clause 202.211.

In response to a question from her Honour Justice Bell about how the defendant responds to the fact that a certain situation can be accommodated by reference to other clauses, so, for example, clauses 202.222, 202.223 or 202.224, my learned friend said, well, they all pre-dated the split family introduction and therefore you should not have regard to those. Well, so did clause 202.221 pre-date the introduction of the split family stream.

In respect of the explanatory statement to which my learned friend took the Court – that is my point four – it is notable that in respect of all of the subclasses that are in class XB, the explanatory statement simply speaks of proposing, allowing the proposing of a member of the immediate family. There is no mention at all of a requirement that immediate family connection continues at the time of decision.

What is notable then, if one looks – and this is my last point – at the other subclasses of visas, taking, for example, the case of the camp clearance visa – that is, subclass 205 – first of all, while they may have been dealt with at the same time in 1997, they are different subclasses, not part of the class XB. Secondly, if one looks at the language that is used in that

case, and that is on page 3 of that handout which sets it out in courier font, at the time of decision it reads the applicant satisfies the requirement of subclause if and then there is a rather familiar (a), (b) and (c). The question remains, what is meant informed by the heading “Criteria to be satisfied at time of application” by subparagraph (c):

the applicant continues to be a member of the immediate family of the proposer –

As Chief Justice French pointed out at one point, you might meet that by saying at the time of application the applicant continues to be a member of the immediate family or the proposer. If one then looks at what is set out under the heading “Criteria to be satisfied at time of decision”, in particular clause 205.221A, are two things. The first is that the language starts approaching perhaps the clarity that Justice Gummow suggested should have and could have been used in respect of the other clauses and, secondly, again it probably, even with approaching that clarity, still begs the question really about whether the time of application heading had an effect that previous criteria in any case fixed. If the Court pleases.

FRENCH CJ: Thank you, Ms De Ferrari. The Court will reserve its decision.

AT 3.48 PM THE MATTER WAS ADJOURNED