Plaintiff M47/2012 v Director General of Security & Ors [2012] HCATrans 149 (21 June 2012)

Last Updated: 21 June 2012

[2012] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M47 of 2012

B e t w e e n -

PLAINTIFF M47/2012

Plaintiff

and

DIRECTOR GENERAL OF SECURITY

First Defendant

THE OFFICER IN CHARGE, MELBOURNE IMMIGRATION TRANSIT ACCOMMODATION

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Fourth Defendant

COMMONWEALTH OF AUSTRALIA

Fifth Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 JUNE 2012, AT 12.02 PM

(Continued from 19/6/12)

Copyright in the High Court of Australia

__________________

MR R.M. NIALL, SC: May it please the Court, I appear with my learned friends, MR C.L. LENEHAN, MS K.L. WALKER and MR M.P. COSTELLO, for the plaintiff. (instructed by Allens Lawyers)

MR S.P. DONAGHUE, SC: May it please the Court, I appear with my learned friend, MR N.M. WOOD, on behalf of all the defendants. (instructed by Australian Government Solicitor)

MR J.K. KIRK, SC: May it please the Court, I appear as intervener on behalf of Plaintiff S138/2012. (instructed by King & Wood Mallesons)

FRENCH CJ: Yes, Mr Niall.

MR NIALL: If the Court pleases. We have provided to the Court short written submissions this morning in relation to the amended ground and by way of oral submission seeking to develop three points. The first is to identify aspects of the scheme including for the purposes of identifying what we submit are the lead provisions in relation to the Act. The second is to take the Court back to make some brief submissions in relation to NAGV and finally to deal with some matters in relation to why we say regulation 4002, as it is picked up in relation to protection visas, is repugnant to the scheme. Can I start firstly, if the Court pleases, by directing the Court’s attention back very quickly to section 36 of the Act and, of course, it provides a criterion for the grant of a visa.

The Act itself providing a criterion is unusual in this statutory scheme. The only other provision is section 32 which deals with the special category visa. The fact that section 36 identifies the criterion, having regard to its content, is significant and, in our submission, it identifies Article 1 of the Convention as a criterion for the grant of a section 36 visa. What it does not do, in our submission, is adopt 33(1) of the Convention nor, in our submission, any part of 32 or 33(2). Support for that can be seen from the judgment of the plurality in NAGV [2005] HCA 6; 222 CLR 161 and if your Honours to immediately to paragraph 56 on page 179 there is a reference to Article 33(2) in paragraph 56 and was described by your Honours as:

The special provisions made in Arts 32 and 33(2) with respect to expulsion “on grounds of national security or public order” –

In paragraph 57 your Honours note expressly, three lines from the bottom:

the legislation did not go on expressly to adopt Art 33(1).

On the next page there are references to the presence of Article 32 and 33(2) elsewhere in the Act but not as relevant to the construction of 36(2). So that is the starting point to the extent that the Act expressly adopts the Convention. The first point is that it adopts Article 1.

The second aspect of the scheme, of course, is section 65 and I do not need to take your Honours to it simply to note its reference to satisfaction with which the Court is well familiar and the cross-reference to 501. Of course, the way the scheme is structured, if an applicant satisfies the criteria, the visa is granted, if the Minister is not so satisfied, it is not granted, with the exception of or with the addition of 501 which may prevent the grant.

The third aspect of the scheme, and your Honours were taken to this the other day, is section 500(1)(c) and the reference to a decision being made to refuse to grant a protection visa relying on one or more of the Articles. That is the second occasion in which the Act adopts Articles of the Convention as relevant to the statutory scheme and the significance of those three Articles, but in particular the second Article, is that they have both a substantive content and a procedural content. We see, in our submission, in the Act that both of those aspects are addressed in the scheme.

The reference to Article 32 or 33(2) and the reference to a decision being made to refuse are not errors on the part of the legislature or evidencing any misunderstanding of the scheme but a deliberate adoption of those two criteria as relevant to the scheme. Your Honours, will note paragraph 91U of the Act which makes specific reference to Article 33(2) of the Convention for the purposes of the application of the Act and the regulations to a particular person, including by reference to a serious Australian offence. Now, the references to 33(2) and 32 are not isolated nor insignificant.

The power to make a decision, in our submission, envisaged by section 500 is that given in 501(6)(d)(v). Your Honours have to hand the bundle of materials provided by the Commonwealth – defendants’ bundle of legislative materials at tab 4. My learned friend, Dr Donaghue, took your Honours to this on Tuesday which brought into the Act 500, 501. Your Honours will see on page 4970 the reference from inception to Article 1F, 32, or 33(2) of the Migration (Offences and Undesirable Person) Amendment Act and over on the explanatory memorandum to the introduction of that, accompanying the introduction of that Bill, your Honours were taken to paragraph 10. If I could take your Honours to paragraph 16 on page 4 about six or seven lines from the bottom. The explanatory memorandum identifies:

The description of what may represent a danger is not intended to be comprehensive and the term “represent a danger” . . . but would also include an assessment that a person is a risk to Australia’s national security.

So there was a direct - - -

HAYNE J: Well, that might be read in light of the second reading speech which is behind tab 6. At the second page of that second reading speech for the Undesirable Persons Bill, so at page 4122 of Hansard column 2, line 3, there is the description given there of the way in which the Minister at least saw the connection between Articles 1F, 32 and 33(2) as aspects, as he said at about line 8 or 10:

adverse determinations are made against persons such that character concerns are sufficiently serious to engage those articles of the convention - - -

MR NIALL: Yes, if your Honours pleases. We would see that as another indicator from the extrinsic material about the integration of the scheme. Now, there is nothing in NAGV that stands against the acceptance of that submission. By doing what it did at section 500 it adopted, as domestic law, the content and gave effect to the protections of the Convention, which were specifically referenced by the legislature.

Now, within that statutory scheme, before any regulation came into play we have, in our submission, a statutory scheme which incorporates criteria at two ends: the refugee criteria and the exclusion criteria of 32 and 33(2), and particular processes in relation to that. Section 31(3), which the Commonwealth describes as a leave provision does no more than permit the regulations to prescribe criteria for a visa, including section 36 in circumstances of course where Parliament has specified the single criterion which presents the most significant means by which Parliament incorporated and gave effect to its international obligations.

In our submission, 31(3) needs to be read as a machinery provision to give effect to the suite of legislative provisions rather than a provision which derogated from it in order to impose criteria inconsistent with those matters. In our submission, the Commonwealth seeks to get from NAGV a proposition for which it does not stand.

The significance of NAGV, in our submission, is this. The plurality clearly indicated that 33(1) is not a criterion that the Act adopted, but the defendants adopt it as a criterion for removal because the whole basis of the Minister’s and defendants’ construction of 198 is that it is predicated by compliance with 33(1), so it becomes, in effect, a criterion for removal in circumstances where the provision itself has not been incorporated into the scheme.

Within that scheme can I turn now to develop what we say in writing about repugnancy, and we do this at paragraph 26 of our written submissions. The critical elements are the correspondence of subject matter, the difference of decision-maker, the movement away from satisfaction and the different availability of review. The effect of the criterion, if it applies to a protection visa, is that the criterion prevents the Act being implemented in the way that it was designed to work. If the defendants are correct, one would never get to an assessment of protection obligations simply because there existed an adverse security assessment. The visa would be refused, but then a criterion of removal would somehow come in on the Minister’s case – the defendants’ case – at 198. That approach does not give effect to - - -

FRENCH CJ: There could be a number of criteria, of course, which could have that effect. Suppose, for example, the applicant failed a health criterion. I mean normally I know they are assessed after protection obligations and so forth are assessed, but let us suppose it was assessed up front or it was plain an applicant could not meet a health criterion. There would be no point at looking at anything else, would there?

MR NIALL: That is so, but we do not identify conflict, simply because of consequence. It is content of the question, process which Parliament deliberately chose and consequence within the mix of a different decision-maker. So the mere fact that there might be the same consequence, that is refusal of a visa, would not, in our submission, necessarily have the consequence for which we contend of repugnancy. As we say in our written submissions at paragraph 27, health criteria are unlikely to give rise to such issues of repugnancy.

They may prevent the grant of a visa and on this branch of the case that may have some significance. It may also have some significance potentially for detention because there may be additional powers to detain aliens who represent a health risk to the community. But our case is more limited and reflects the fundamental picking up of the criteria which prevents the Act operating in the way in which we submit it should.

HAYNE J: The relevant question of repugnancy is repugnancy of the regulation to the Act, not repugnancy between the regulation and the Convention.

MR NIALL: That is so and that is why we place so much emphasis on section 36 as one aspect of a criterion and Articles 32 and 33 in relation to the process for refusing a protection visa.

HAYNE J: But an alternative approach is to observe the existence of 500(1)(c) and the decision there described and to ask whether the Act’s reference to that is consistent with the prescription of a criterion, having the characteristics you identify in paragraph 26 of your further submissions.

MR NIALL: In our submission, it is not.

HAYNE J: Now, an answer the Commonwealth makes, or the defendants make, as I understand it, is that the Act’s references in 500(1)(c), et cetera, to a decision to refuse to grant relying on 32 are to be treated as references either made by mistake, having no operation. I am not sure they go so far as to say engaging principles of the kind described in Cooper Brookes v The Commissioner of Taxation. I suspect that that is an issue that we may have to hear from the defendants about, but - - -

MR NIALL: As to the first, for the reasons we have said in writing, it is simply not open to read Parliament as making a mistake when it said expressly that a protection visa can be refused relying on one of these grounds in circumstances where the premise of the argument that there was a mistake rests on the misreading of NAGV.

HAYNE J: Just so the transcript makes some sense, or my intervention for once might make some sense, Cooper Brookes is [1981] HCA 26; 147 CLR 297, Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation.

MR NIALL: If one looks to, in our respectful submission, an absurd construction, it would be one which permitted the whole protections of the Convention to be avoided through a criterion that the Minister cannot have any substantive content analysis of and completely avoids the protections of the Convention. So if there was an absurd construction, in our submission, it is the one which the Minister contends which forces the defendants to bring back into play Article 33 in 198 without a textual footing. Unless I can be of any further assistance, they are the submissions in support of that ground.

FRENCH CJ: What is the practical consequence if you were to succeed in this limb of your argument?

MR NIALL: The declaration would be sought ultimately. The question that has been reserved for consideration of the Full Court would be answered yes. We would then seek relief seeking a declaration as to invalidity of 4002. That would have the consequence, although not in this litigation, that the decision on the protection visa had not been properly determined in accordance with law because it relied on an invalid regulation.

In terms of that, that would then enable the processes of the visa decision to be determined and conclusively determined correctly in accordance with the law. It would most likely have the consequence that detention could be authorised for that purpose, there being a purpose for the Act to fulfil which it has not yet fulfilled. So the declaration would provide the means by which the validity of the decision to refuse the protection visa would be impugned and that would require the decision to be finally determined in accordance with law.

GUMMOW J: All of those steps would be for the justice disposing of the action, would it not?

MR NIALL: If the Court pleases, yes.

GUMMOW J: What you want is an answer to the question, is it, in the amended special case.

MR NIALL: Question 2A would be answered yes.

KIEFEL J: What about the answer to question 3 then? Is the answer yes for the purposes of determination of the application?

MR NIALL: That would authorise detention, in our submission.

FRENCH CJ: Because there is an unresolved application for the protection visa on the basis of it.

MR NIALL: There is, and plainly detention can be authorised for the purposes of processing that visa and the other issue would not arise – question 2 would not arise because there would be no “yet” issue in relation to the plaintiff as to whether he would be removed in those circumstances.

GUMMOW J: Because there would still be a pending - - -

MR NIALL: There would not be a determination finally of his application for a visa. Section 198 would not operate because 198 is expressed not to be engaged until a visa has been finally determined. One sees that in 198 relevantly (2)(c) and a mirror provision in subsection (6).

HAYNE J: Well, for my own part, I would be glad if the plaintiff would provide in writing the answers he would assert should be given to the questions reserved, or the questions raised rather, they are not reserved questions perhaps on the alternative arguments that you advance. I think you may end up with only two versions of answer. I am not sure there is more than two, but if there are more than two, for my own part, I would be assisted by a written statement of the answers you would urge should be made according to the possible outcomes of your argument.

MR NIALL: We will do that within 24 hours if that is convenient to the Court.

FRENCH CJ: I think you can take that as a general view.

MR NIALL: If the Court pleases. We will attend to that in the next 24 hours.

FRENCH CJ: Yes, very well. Yes, Mr Donaghue.

MR NIALL: If the Court pleases.

MR DONAGHUE: Your Honours, can we address the issues that arise on the new issue raised by the amendment in four parts: first, by identifying what we submit is an important ambiguity in the plaintiff’s argument that bears on the width of the regulation-making power; second, the relevant application of the principles in Project Blue Sky to this case; third, the submission that there is no positive criteria for a protection visa with which clause 866.225 and public interest criterion 4002 can be inconsistent; and, fourth, and in the alternative, that even if there is a positive criterion relating to Articles 32 and 33 of the Convention, that there is no negative implication from the existence of that positive criterion that prevents the creation by regulation of an additional criteria of the kind found in public interest criterion 4002.

In relation to the ambiguity, if your Honours could to turn to my friend’s submissions filed this morning, to the second page where there is a summary of the primary way that the case is put, and if your Honours look particularly at paragraphs 2.3 through to 2.5 you will see the proposition that there is “a special kind of decision and associated review regime” created for decisions relying on Articles 32 and 33, that if that special route is followed removal is possible under 198, but that if that special route is not followed and a decision is made “to refuse or to cancel a protection visa without deploying” that process then the removal power is not available.

Now, if your Honours go from there to paragraph 27 you will see that the plaintiff there disavows any argument that it is not possible to create other criteria for a protection visa relying upon sections 504 and 31, and they attempt to focus their argument quite narrowly on criteria that concern the security topic and are thus said to cut across the subject matter of 32 or 33.

The difficulty that we submit arises is this. Once there can be other criteria such as health criteria or debts to the Commonwealth or damage to foreign relations, the special process contemplated by section 500(1)(c) will not engaged, at least in respect of some such criteria, and the question that then arises is, on their case, how are the general provisions concerning detention and removal to operate? If those provisions do not operate to entitle someone who is owed protection obligations – to entitle a refugee who has failed a health check, for example, to be detained and removed, then their argument that other criteria can be prescribed is shown to be meaningless because, effectively, once you are a refugee you stay in Australia. You cannot be detained or removed.

HAYNE J: Do you say that consistent with 500(1)(c), a criterion can be specified which would be the exact obverse of 500(1)(c)? Surely not.

MR DONAGHUE: Your Honour, if there was a positive criterion created by the Act, in the terms of Articles 32 and 33, then a regulation that may carry with it a negative implication that would prevent a regulation of the kind your Honour puts to me – the exact obverse. But, here, we submit, we are not dealing with the exact obverse. We are dealing with a related but different question. So that is the final part of my submissions, addressing that situation.

What we are putting at this point, your Honour, is that if it is possible to remove a refugee who is refused a protection visa, say, on health criteria then that shows that you can remove under 198 without going through the special procedure that 500(1)(c) contemplates, that is, it is not necessary – that is not the only way you can remove a refugee by going through that special process. If it is not the only way, then our friends are forced back on to their argument that PIC 4002 is invalid because this was not a decision, on any view, we submit, this was not a decision that was made relying on the special process that they refer to. This was made on other criteria.

We submit there is no relevant difference between public interest criterion 4002 and the health criteria or the foreign relations criteria. It is just a basis upon which the regulations say you cannot receive a protection visa. If a refugee can be removed if they fail a health check, they can be removed if they fail public interest criterion 4002.

Your Honours, in terms of the second point, Project Blue Sky, we submit that the plaintiffs’ construction rather than seek the harmonious goals that are referred to in Project Blue Sky at paragraph 70 and attempts to give provisions on a harmonious operation, the plaintiffs seek to create conflict between the provisions. We submit that the provisions – and here I am speaking of section 31(3) and section 500(1)(c) and 501(6)(d)(v) – are able to be read together and that in the process of reading them together the lead provisions should be recognised as section 31(3).

HAYNE J: Why? It is a regulation making power which deals with a subject matter which, on one view, is dealt with expressly in 500(1)(c). Is not the lead subsidiary comparison to be made between a provision of the Act and a regulation, not between the regulation making power and another section of the Act, but the Act and a regulation?

MR DONAGHUE: Your Honour, I put the submission as I did because the regulation making power envisages the making of regulations about protection visas, creating criteria for protection visas, so the Act itself contemplates the – the provision in the primary legislation contemplates the making of regulations concerning protection visas. Section 500(1)(c) certainly is not expressly a provision that creates criteria. It does, we accept, contemplate a category of decision, but it is in its terms a conferral of merits review jurisdiction and that is all that it is, we submit. We submit that section 31 (3) is the provision upon which a very elaborate and complex edifice has been constructed upon which the operation of this legislation turns.

Your Honours are well familiar with the detailed interlocking provisions found in Schedule 1 and Schedule 2 that govern the entitlement to the whole range of provisions, all of which are tied back and operate only because of section 31(3). The Full Federal Court in a case I will come to shortly, VWOK v Minister for Immigration, recognised what it described as the central role to be given to the prescription by the Executive of criteria for a visa and we respectfully submit that their Honours were right in recognising that central role in section 31(3).

GUMMOW J: Now, what you were saying in response to Justice Hayne was your answer to paragraph 25, was it, of the plaintiff’s supplementary submissions?

MR DONAGHUE: It was a limited part of my answer to it, your Honour. I am going to come to the 501(6)(d) in a moment and focus in some detail on it if I might. Could I, before turning to that, make - - -

GUMMOW J: There is a reference there, you will see, to Anthony Hordern.

MR DONAGHUE: Yes, your Honour. If I might defer that for just a moment I will address it, but we have quite a number of points we seek to make about it. Just before I do that, your Honour, we do submit and your Honours will have seen in writing we refer to the decision of the House of Lords in Hanlon v The Law Society and to some other Australian cases that have picked up that case which is, we submit, an authority for the proposition that where an Act is built on a framework of legislation and contemporaneously provided regulations, it is permissible to use the regulations as an aid in construing the overall statutory scheme. We rely on that principle because as - - -

GUMMOW J: Well, what is the foundation for that principle?

FRENCH CJ: Regulations change so does the statutory interpretation change?

MR DONAGHUE: Your Honour, if your Honours have the case, it is Hanlon v The Law Society [1981] AC 124 relevantly at page 194, but the proposition relates to regulations contemporaneously prepared with the legislation, not to subsequent changes in the regulations.

GUMMOW J: So what?

MR DONAGHUE: Well, your Honour, the principle that is there identified is that - - -

GUMMOW J: Well, where is the principle stated?

MR DONAGHUE: At paragraph E on page 194, your Honour.

HAYNE J: “[S]treamlined statute” - it is not an expression commonly associated with the Act that is the focus of this litigation, I think.

MR DONAGHUE: The meaning given to that somewhat unusual term is referred to just above the quote, your Honour.

GUMMOW J: Yes, I saw that.

MR DONAGHUE:

general principles and leaving the machinery to be embodied in regulations.

In my submission, that is a fair description of the way that the Migration Act works as the weight of the migration regulations attests. Your Honours, this public interest criterion that is now being challenged - - -

GUMMOW J: Regulations could only assist if a view of the Executive was controlling the meaning of the parliamentary will.

MR DONAGHUE: Yes, your Honour, but if the parliamentary will reflects a superstructure and an established body of regulations prepared at the same time to commence at the same time, then the discussion in Hanlon - and it has been applied in Australian courts on numerous occasions - - -

GUMMOW J: By this Court?

MR DONAGHUE: No, your Honour, I do not believe - - -

HEYDON J: There is a decision of Justice Mason to this effect. I just cannot remember the name of it, but there is a decision of Justice Mason.

MR DONAGHUE: Justice Mason certainly mentioned the principle in – I cannot remember the name of the case, your Honour, either but it is referred to in some of the textbooks on the subject. It is in the course of argument his Honour referred – and the argument is recorded in the Commonwealth Law Reports. His Honour referred to the principle but we did not put it forward for that reason, but there are decisions of the Full Federal Court that have applied.

HEYDON J: My memory fades more and more each day. I remember it as being a decision in a decision of the Court, perhaps not in the Commonwealth Law Reports but in the Australian Law Journal Reports.

MR DONAGHUE: I am not familiar with that authority, your Honour. We raise it only because the Migration Reform Act not only made major reforms to the Act but was accompanied by substantial changes to the regulations including the regulations for protection visas and since the very moment they were created public interest criterion 4002 has existed as part of the statutory scheme for a protection visa. So that prescription has miscarried from the start and every decision that has ever been made in relation to a protection visa has been made by reference to a criteria that, on the argument now put, has been invalid from the outset because section 500(1)(c) was also part of the scheme at the time of commencement.

Your Honours, we submit that Mr Niall’s submissions this morning that we are seeking to import Article 33 into the Act in a way where it does not fit at the stage of section 198, runs squarely counter to what your Honours decided in Plaintiff M70. The submission that the Commonwealth puts accepts the authority of that case that the power conferred by 198 of the Act cannot be exercised inconsistently with Australia’s obligations under the Convention. We are not seeking to force the consideration in at that point but what that decision means is that there is no need to give what we submit is a strained operation to section 500(1)(c) in order to ensure that Australia does not breach its obligations under the Convention.

The Act already means that you cannot expel a refugee in contravention of Article 32, if it applies, or Article 33, and because the Act already means that, the refugee is protected from being removed in breach of those rights and there is no requirement to import back through the medium of section 500(1)(c) such an obligation.

I will not take your Honours to it but we have noted in our submission that this challenge to the regulations now challenged on the express basis that they are inconsistent with section 500(1)(c) was made in the Federal Court 12 years ago in a case called Kaddari v Minister for Immigration. It was rejected by his Honour Justice Tamberlin - - -

GUMMOW J: What is the citation of Justice Tamberlin’s case?

MR DONAGHUE: It is [2000] FCA 659; (2000) 98 FCR 597.

FRENCH CJ: Well, the reasoning there is really your argument, is it not?

MR DONAGHUE: Yes, although it does not deal with the point that I am about to come to which is the argument that the character provisions of the Act are the way in which the criteria comes in. It had, we submit, been assumed up to NAGV that the way that these references to 32 and 33 were brought in were by reference to the section 36 protection obligations criterion. As we understand our friend’s submissions at paragraph 33 of their written outline, they now concede that NAGV is authority for the proposition that Articles 32 and 33 do not form an element of the criterion in Article 36.

GUMMOW J: Which paragraph?

MR DONAGHUE: Paragraph 33, your Honour, about six or seven lines up:

The rejection of the Minister’s argument involved no more than the conclusion that those matters do not form an element of the criterion in s 36(2) –

but that, of course, was a significant part of our argument earlier in the week and they now commit themselves to the idea that it is section 501(6)(d)(v) that is the mechanism by which it is possible to make a decision relying on Articles 32 or 33. We submit that there are five problems with that argument and this is the point that I deferred your Honour Justice Gummow’s question to. So, if I can work through the five answers.

The first, we submit, is that this construction renders section 500(1)(c) essentially redundant, and the reasons that I say that is that if your Honours look at 500(1)(b) you will see that that subparagraph gives the Administrative Appeals Tribunal review jurisdiction in relation to decisions of the delegate of the Minister under section 501. So it is only personal decisions of the Minister under section 501 that are not already there. If the way that one makes a decision relying on Articles 32 or 33 as a character decision, there was no need for paragraph (c), except to the extent that the Minister is a primary decision-maker for protection visas and that, we submit, gives a trivial operation to paragraph 500(1)(c) and makes it a weak foundation indeed for this submission that there is repugnancy to the regulation making power.

Second, we submit that the explanatory memorandum, which your Honours were taken back to this morning, to the Act that introduced section 500(1)(c) in paragraph 10 plainly linked the relevant Article to the withdrawal of the circumstances in which protection obligations were not owed. The EM is behind tab 5 and in paragraph 10, which is the provision that is talking about the insertion of this subsection, it is said, in the last five lines:

The Articles of the Refugees Convention referred to the in new paragraph 180(1)(c) –

which is 500(1)(c) –

have the effect of removing the obligation to provide protection as a refugee –

So we submit that that indicates an assumption that those Articles were relevant to the criteria in 36(2). Now, we have referred in writing to your Honours’ decision in CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1, which for the most part is unrelated. The relevant statement, and it is no more than that, it is just your Honours approving an observation of Lord Reid at paragraph 51 on page 25. Chief Justice Gleeson and Justices Gummow and Heydon referred, halfway down paragraph 51, to the section there in issue, section 59(3), being:

an example of Lord Reid’s principle that: “the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different”.

We submit that that is what your Honours did NAGV; you decided that the law was something different to what Parliament had assumed it was at the time that it enacted this section.

Next, your Honours, our third point is that if it is the case that a protection visa can properly be refused relying on section 501(6)(d)(v), it must also follow, we submit, that a protection visa could properly be refused relying on any other part of the character test. If that is so, one again has a situation where you have a refugee who has been refused a protection visa and is not able to engage the mechanism created by 500(1)(c). That, we submit, again suggests that the idea that the only way that a refugee can be removed is if they have had a decision to refuse them a protection visa made on that special basis cannot be right because the character test goes far wider than the terms of Articles 32 and 33, for example, if your Honours look at 501(6)(b), the character test can be failed when a:

person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct –

That would provide a basis for refusing a protection visa, far removed from the terms of Articles 32 or 33.

BELL J: There would be, in that case, the review right under 500(1)(b) - - -

MR DONAGHUE: There would.

BELL J: - - - in relation to all decisions, save those by the Minister.

MR DONAGHUE: Yes.

BELL J: I am having some difficulty understanding why you say (b) does the work of (c) on an acceptance that the character test brings in considerations of Articles 32 and 33.

MR DONAGHUE: Because, your Honour, if the decision is based on 501(6)(d)(v) - - -

BELL J: Yes.

MR DONAGHUE: - - -it is a decision, as long as it is not made by the Minister personally.

BELL J: That is the point – (c) is dealing with decisions of a different character to (a) and (b) which are concerned – I am sorry, (b), which is concerned with decisions of a delegate of the Minister.

MR DONAGHUE: Well, (b) is concerned with character decisions generally, other than by reference to the Minister – (c) does not specify the decision-maker.

BELL J: That is significant.

MR DONAGHUE: Yes. I accept that it is capable but it is only capable of applying – all that it adds to the regime is if the Minister takes on the task of personally making first instance protection visa decisions.

BELL J: What it recognises is that the Minister may take on the task of making, personally, decisions in cases raising those character considerations attracted by 32 and 33(2) of the Convention.

MR DONAGHUE: But, we submit, that a construction of the provision that reads it as focusing exclusively on personal decisions by the Minister made on that basis is not supported at all by any of the secondary material concerning this provision. It is a way of reading it that would give it some work that does not overlap completely with (b). I accept that that is so. But, there is, we submit, no reason to read it as intending to have that operation. The more natural reading of the words and the reading suggested by the explanatory memorandum is that it was thought to relate to 36(2), that it was not thought to relate to the engagement of this character paragraph.

Now, I accept your Honour Justice Hayne has referred to the second reading speech which did intermingle the concepts. We submit it intermingled them because this was a Bill that introduced this paragraph that was essentially about character refusal. That was what it was concerned with.

FRENCH CJ: Mr Donaghue, we might now adjourn until 2 o’clock.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

FRENCH CJ: Yes, Mr Donaghue.

MR DONAGHUE: Thank you, your Honour. Your Honours, I have reached the fourth of the submissions that we make in relation to section 501(6)(d)(v) concerning the question whether that decision is made pursuant to that subsection are appropriately described as decisions relying on Articles 32 or 33. The fourth point that we make is this. That power to refuse or cancel a visa on character grounds is a power of general application, that is, it is possible to cancel any different kind of visa pursuant to that subparagraph.

Plainly, when a decision is made to cancel, say, a student visa or employment visa by reference to that paragraph, that decision could not properly be described as a decision relying on Articles 32 or 33 of the Convention. It would have nothing whatsoever to do with Article 32 or 33 of the Convention. It would be a decision relying on the statutory criteria created by that paragraph, that is, that the person is found by the decision-maker to be a danger to the Australian community. We submit that applying exactly the same statutory criteria in the context of a protection visa, there is no reason to characterise the decision differently as relying upon some alternative source, that is, obligations under 32 or 33 of the Convention.

FRENCH CJ: But if one were concerned that a decision to cancel or refuse to grant a protection visa which ultimately would lead to the removal of the person from Australia pursuant to section 198 would violate Australia’s protection obligations, one could say this exercise of this statutory discretion is consistent with and based upon Articles 32 and 33 in that sense, could one not? I mean, it is a wide power, it covers a variety of circumstances, as you say, but we are plugging it into this particular regime.

MR DONAGHUE: Yes. I accepted, I think, on Tuesday that a decision that properly attracted the operation of 33 or 32 would fall within the scope of that paragraph and I accept that that is so, but we do not accept that the converse is true; that every decision that is made falling within that paragraph would be of a kind that would justify refoulement under 32 or 33 and because of that difference we say that the decision is properly analysed as a decision relying upon the statutory criteria rather than a higher burden.

Now, I accept what your Honour the Chief Justice puts to me, that one could analyse it in that way; a decision-maker could conceivably say, “I am satisfied that 33(2) applies and therefore I will refuse to grant a visa in the exercise of that statutory power”. But, one cannot take, we submit, simply from the fact that a decision is made in reliance on that paragraph, a conclusion that there has been some decision made by reference to the Convention criteria, and for that reason we say that the - - -

HAYNE J: Sorry, I missed what you said. Do you mind restating what you have just put?

MR DONAGHUE: I apologise, your Honour, I was speaking too quickly. We accept that it would be open to a decision-maker to say, “Because I think that this refugee is a person who can be removed from Australia consistently with Article 33(2) of the Convention, that person is a sufficient danger to the community to satisfy the statutory criteria in 501(6)(d)(v), and therefore I have a statutory power under the Migration Act to refuse to grant a visa”.

That would be a mode of reasoning that was open to a decision-maker, but it would be equally open to the decision-maker not to go through that path, just to say, “This person represents, in my view, a significant danger to the Australian community such as to engage the statutory power to cancel, to make or to refuse a visa, to make a decision on that basis”, without ever turning his or her mind to the question of the Convention criteria, and one could not then tell just from the fact that there had been a decision of this kind whether or not that was a decision relying on Articles 32 or 33 of the Convention. Indeed, we submit, it would not be a decision relying on those Articles because the operative conclusion would be the decision that the statutory criteria were satisfied, not that the Convention criteria were satisfied.

HAYNE J: What is the consequence of that chain of reasoning?

MR DONAGHUE: This, your Honour, that the protection visa can be cancelled under this paragraph as under any one of the other character – your Honour, I withdraw that. I keep saying “cancelled”. The protection visa could be refused on this paragraph, as on any of the other character powers leading to the position where there is a refugee in Australia who does not have a visa and who is, therefore, an unlawful non-citizen. They are, of course, still a refugee and so Australia continues to have obligations with respect to their treatment and cannot lawfully remove them from Australia, in contravention of 33 of the Convention, or if it applies, in contravention of 32.

But that is not because there is some limit on the criteria able to be applied at the point of grant of a protection visa. It is because your Honours have held, in Plaintiff M70, that the removal power does not authorise or oblige action in breach of Australia’s obligation. So from the perspective of the refugee they are protected. They have the protection that the Convention affords to them, but from the perspective of Australian domestic law they are validly refused a protection visa and the consequences of that refusal then follow under the Act.

HAYNE J: But is the consequence of the submissions you have just advanced that the Act may be administered by decision-makers in a way that would mean that 500(1)(c) never has work to do?

MR DONAGHUE: It will always have work in relation to Article 1F because Article 1F will negate the existence of protection obligations and so apply in that way.

HAYNE J: Otherwise never has work to do, that is are you not advancing a construction of the Act that reads out of 500(1)(c) any reference to 32 or 33(2)?

MR DONAGHUE: I am advancing an interpretation that reads it out to the limited extent of a refusal to grant a visa based upon Article 32 or 33. So there is still cancellation, there is still Article 1F. While I accept, your Honour, that the point your Honour is putting to me is an open point one can readily understand how it might be said that those sections suggest that there is a criteria to be found, and that it is possible to refuse a protection visa, based on 32 and 33 of the Convention and that, indeed, was the very argument that the Minister tried to persuade the Court to accept in NAGV. We submit that having failed to persuade the court of that point in NAGV it has the consequence that those words do not do work.

So it is not a proposition that we urge upon the Court as obvious on the face of the words, but it is, we submit, a consequence that follows necessarily from the decision in NAGV. You cannot refuse a protection visa based on those two provisions, at least insofar as they interact with 36(2) of the Convention. Now, that, we submit, is the work they were supposed to do and so I accept that they do not operate in that limited context, but we say that that is explicable for the reasons that I have just given.

Your Honours, the other reason that we say that one cannot treat a decision made under paragraph (d)(v) as a decision made relying on Articles 32 or 33 is that the question that the decision-maker has to ask is quite different under paragraph (d)(v) than it is under Article 33(2) in particular. I will not take your Honours to the case but if I could give you the reference to the decision of the New Zealand Supreme Court in Zaoui v Attorney-General (No 2) [2005] NZSC 38; (2006) 1 NZLR 289. In that case Justice Keith, on behalf of the court, in the context of legislation that directly incorporated Article 33(2) of the Convention, analysed how that Article works and by reference also to a decision of the Canadian Supreme Court in Suresh said that the exception will only apply where there is a serious threat to security on objectively reasonable grounds and where the threated harm is substantial.

GUMMOW J: That is 2006?

MR DONAGHUE: It is [2005] NZSC 38; (2006) 1 NZLR 289. So there is a content there of gravity, serious threats and substantial harm, that is not replicated in paragraph 501(6)(d)(v) and so the question that has to be asked is of a different kind and the question being different, it cannot be said that when the question is answered it is answered in reliance upon the different Convention articles.

We submit that if it were to be – and we think that the plaintiff is inviting your Honours to find that paragraph (d)(v) is a legislative implementation of the Convention obligation in 32. We may have misunderstood that, but if that is what is being urged upon the Court, we submit that would have the rather startling consequence of decreasing the protection available to refugees by lowering the bar that would otherwise have applied to protect refugees under Article 33 because if this is a legislative implementation such that a decision under one should be treated as a decision relying on the other, then it would follow that if the Minister is satisfied that a person falls within that paragraph, that would be sufficient to attract the Article rather than the apparently objective test posed in Article 33(2).

We submit that refugees receive a much greater level of protection if it is recognised that Articles 32 and 33 are not concerned at all with the question, is a particular refugee entitled to asylum in Australia? Those Articles are concerned with limiting a State’s power of expulsion and the limit on expulsion is properly applied at the point of expulsion under section 198, not at the point of making a separate decision about whether or not to grant admission to the Australian community or, in other words, to grant asylum.

HAYNE J: Is it open to read section 500(1) and the three paragraphs of that subsection as distinguishing paragraph (a), decisions of the Minister, paragraph (b), decisions of a delegate, paragraph (c), in effect, any decision however made of the character described?

MR DONAGHUE: Of the character described, yes, it is open to do that.

HAYNE J: Yes.

MR DONAGHUE: But, as I said before lunch, if one does get to 32 and 33 via the character route, that will mean that in practice all decisions get caught at paragraph (b) because the Minister should not be expected to be a primary decision-maker in relation to protection visa obligations.

HAYNE J: But in respect of security decisions, is it not perfectly sensible to think that questions about the national security of the country would attract ministerial personal involvement?

MR DONAGHUE: Well, that would be one way to administer the Act, your Honour. Another way is the way that has been chosen, which is to repose those decisions in ASIO, to have ASIO make the assessment and then to give effect to ASIO’s assessment under the regime and while it is the case that the Minister makes significant numbers of cancellation decisions personally, the task of making a primary decision at the protection visa stage obviously involves a consideration of significant amounts of primary evidence and country information and matters of that kind and it is not a function, we submit, that it should be anticipated the Minister would undertake on a personal basis.

Your Honours, even if we are wrong in everything that we have put so far and there is a criterion by which a protection visa can be refused based on Articles 32 and 33, that would only lead to the invalidity of clause 866.225(a) as it applies public interest criterion 4002. If there is in the Act an implicit negative proposition that not only can a visa be refused on that ground, it can only be refused on that ground, at least in areas that intersect with the content of Articles 32 and 33. We submit that there is not to be found within the Act any such implicit negative.

This point was addressed in part by his Honour Justice Sundberg in a case I would ask your Honours to turn to - it is Director-General of Security v Sultan [1998] FCA 1548; (1998) 90 FCR 334. This is a case that was decided at a time pre-NAGV, when it was thought that you could refuse a protection visa based on Article 33 because if Article 33(2) applied that would negate the existence of protection obligations under the Convention. If your Honours turn to page 335, you will see it about paragraph C on the page that Mr Sultan had been found to be a refugee but ASIO had then provided a security assessment in respect of him, an adverse assessment, and a delegate had then decided to refuse to grant the visa - this is next to paragraph D on the page:

on two related grounds. The first was that although Sultan had a well-founded fear of persecution for a Convention reason, he was a risk to Australia’s national security, and thus fell within the exception in Art 33(2) of the Convention.

So there was an express decision based on 33(2) on a ground now found to be unavailable in NAGV. Then under that quote it was also found, paragraph F:

The delegate’s second ground was that Sultan had not satisfied public interest criterion 4002 –

So, having been refused on those two related bases, Mr Sultan sought to appeal to the Administrative Appeals Tribunal under section 500(1)(c), and if your Honours then turn to page 337 you will see that a preliminary point was taken on behalf of the Director-General of Security right at the last line on this page. You will see it was argued that:

the Tribunal had no jurisdiction to review the second ground, namely failure to satisfy public interest criterion 4002.

It was then said that even if he succeeded on the Article 33 point that would not help him because he still would not be entitled to a visa by reason of the failure to satisfy public interest criterion 4002. Justice Sundberg upheld that objection, and if your Honours turn to page 339 you will see that his Honour reasoned, at paragraph D, that there had been an argument put that:

s 500 gives jurisdiction to the Tribunal, and criterion 4002 should not be construed so as to detract from that jurisdiction.

His Honour did not accept that argument because of the difference between, and the subject matter of section 500 and that of PIC 4002:

Section 500 does not apply to decisions to refuse a visa because criterion 4002 has not been satisfied. Section 65 is unmistakable.

We submit that his Honour there recognised that because the question that PIC 4002 asked is different than the question Article 32 asks, the fact that there is review when there is an Article 33(2) decision tells one nothing about whether or not there was intended to be review when a decision was made by reference to different criteria.

HAYNE J: Why does not the decision in Sultan demonstrate in concrete terms the contrariety that exists between 4002 and the reference in 500(1)(c)?

MR DONAGHUE: Your Honour, it would do so only if Article 33 of the Convention is properly to be understood as an exhaustive statement of the circumstances in which Australia is entitled to refuse admission on security grounds. If it is properly to be understood in that way as exhaustively describing - - -

FRENCH CJ: For the purposes of municipal law?

MR DONAGHUE: Yes. If it was exhaustive for the purposes of municipal law, then it would follow that if Australia sets a higher bar to admission that would contravene the implicit negative, but we submit Article 33 does not do that. Article 33 limits the circumstances in which you can refoule, but it says nothing about Australia’s capacity to set a higher bar to admission based on security grounds and that is what PIC 4002 does and that is not contrary to the criteria, even assuming that it is possible to refuse a protection visa based on Article 33. The fact that the questions are different means that there is no contradiction of a kind that would generate invalidity.

Your Honours, the final point that I seek to make is based upon the decision of the Full Federal Court in VWOK v The Minister [2005] FCAFC 249; (2005) 147 FCR 135. This was a decision on appeal from an earlier decision of your Honour Justice Crennan and the Full Federal Court dismissed the appeal from your Honour’s judgment. The issue, and it is relevant squarely given the significance the plaintiff now attaches to the character provisions as a way they say that the article is brought into domestic law – that Articles 32 and 33 and brought into domestic law, the issue was that at paragraph 3 of the report you can see a criterion had been made under the regulations that provided that:

In the case of an applicant referred to in paragraph [clause] 866.211(a), the applicant has not in the last 4 years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months.

In other words, if you have been convicted for an offence for which the maximum penalty is at least 12 months, you fail that criterion without there being any need for the Minister to make the discretionary decision based on the character test set out in section 501. It was argued in this case that because the effect of the regulation that had been made was that you never needed to get to a ministerial decision under section 501, the clause was contrary to the scheme because it cut you off before you got to the point where a discretion could have been exercised in your favour.

Now, at paragraph 10, your Honours will see that by the time the matter reached the Full Federal Court the only basis of the appeal was the argument that the relevant clause was invalid because it was repugnant to section 501 of the Act. This is, I should say, a decision in the context of somebody who had been found to be a refugee, but denied a protection visa because of offences that meant that he did not meet the relevant criteria.

CRENNAN J: Denied a permanent protection visa, I think.

MR DONAGHUE: Yes, yes. Now, at paragraphs 13 and 14 their Honours set out sections 31 and 65 of the Act and then they summarise the argument on the appeal at paragraph 15. The argument was:

that cl 866.222A was invalid as inconsistent with, and repugnant to, the Migration Act, and in particular s 501 thereof. This was brought about, it was said, because it invaded the field which the Parliament had given to s 501 – refusal of visas for character grounds . . . The effect of a failure of the appellant to satisfy the Minister of the criterion in cl 866.222A for a permanent protection visa was that the Minister was obliged under s 65 to refuse to grant that visa. Thus, it was said, there was denied a role for the operation of s 501 in the possible refusal of that visa.

We submit that the argument for repugnancy between this clause and section 501 is far stronger than the argument that is now advanced in this case because there was a direct correlation between the criteria, on the one hand, and the capacity to exercise the section 501 power. But your Honour Justice Crennan in a passage, a lengthy passage that the Full Federal Court set out on page 140 in paragraph 18 rejected the argument. If I could ask your Honours to look four lines down in the second paragraph, your Honour Justice Crennan said:

Section 501 does not contain criteria for the grant of a visa as does cl 866.222A. There is nothing repugnant to the Act in regulations containing certain specified criteria for certain specified visas as contemplated by s 31 . . .

There is nothing clearly inconsistent or clearly lacking in harmony in the coexistence of a power to refuse a particular class of visa for failure to satisfy certain criteria set out in subordinate legislation and a power to refuse to grant a visa on character grounds under the Act. The fact that each of s 501 of the Act and the Regulation in question refers to convictions, but deals with them differently, one from the other, reflects no more than their different purposes. Section 501 may be exercised independently of the satisfaction of criteria for a visa of a specified class.

The Full Federal Court then in paragraph 19 said:

We agree with her Honour’s analysis -

and in paragraph 20 emphasised the point I made in opening that:

The structure of the Migration Act is such as to give a central role to the prescription by the Executive of criteria necessary to be satisfied for the grant of a visa.

We respectfully urge that reasoning upon your Honours and submit that it stands in the way of a conclusion that even assuming that there is a possibility in the Act to refuse to grant a protection visa based on Articles 32 of 33, that it does not follow that it is not open to Parliament to prescribe separate and different criteria that set a higher bar to entry to Australia and that if that submission be accepted, then the challenge to the validity of clause 866.225(a) and the public interest criterion as applied by that provision should be dismissed. If the Court pleases?

FRENCH CJ: Thank you, Mr Donaghue. Yes, Mr Niall.

MR NIALL: Very briefly, if I may. Just in relation to the judgment of the Full Court of the Federal Court in VWOK, the differences are very stark, in our submission. That was a case which did not involve any contrariety in relation to protection. Your Honours will see that on page 140 at about point 4 on the page where your Honour Justice Crennan identifies that – starting the sentence, three words in:

In its terms, the clause operates to preclude an applicant from obtaining a Permanent Protection visa in the circumstances covered. As there are no equivalent criteria in respect of a Temporary Protection visa, an applicant is not excluded from protection; rather an applicant does not obtain all the benefits of a Permanent Protection visa –

So there was no question about possible contrariety with the Convention in a similar way to the judgment of the Court in QAAH dealing with temporary protection visas. So no assistance, in our respectful submission, can be gleaned in the present context and the contrariety which is evidenced by Sultan was absent in that case.

The only other matter, my learned friend said that this Act gives to ASIO the decision in relation to security, but that cannot survive a number of indications, one of which is section 502 which specifically identifies the Minister acting personally, making a decision to refuse to grant a protection visa in relation to a person relying on one or more of the Articles and the Minister, paragraph (b) decides that because of the seriousness of the circumstances in the national interest to be declared. So it is an express indication that the Minister is the person under this Act proposed with ultimately making decisions to his or her satisfaction about national security and the operation of the two Convention Articles. They are the matters in reply, if the Court pleases?

FRENCH CJ: Yes, thank you, Mr Niall. The Court will reserve its decision. The Court adjourns until 9.30 am tomorrow morning in Sydney and 10.30 am tomorrow morning in Canberra.

AT 2.28 PM THE MATTER WAS ADJOURNED