SZOQQ v Minister for Immigration and Citizenship & Anor [2013] HCATrans 44 (12 March 2013)

Last Updated: 14 March 2013

[2013] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S334 of 2012

B e t w e e n -

SZOQQ

Appellant

and

MINISTER FOR IMMIGRATION AND CITZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 MARCH 2013, AT 10.15 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If your Honours please, I appear for the appellant with MR N.C. POYNDER. (instructed by Gilbert + Tobin Lawyers)

MR G.R. KENNETT, SC: If the Court pleases, I appear with MS H. YOUNAN, for the first respondent. (instructed by DLA Piper Australia)

FRENCH CJ: There is a submitting appearance for the second respondent. Yes, Mr Game.

MR GAME: The Court should have our outline, and a bundle of legislation that looks like this, and could I take your Honours to the bundle first? I hope your Honours forgive me if I take you through some legislation that you have been through in some detail recently. Many of the points I wish to make can be made by tracing through what has occurred, in respect of the legislation. If we look at the legislative bundle, there is a note on the front of the legislative bundle, and I can do this hopefully in a summary way, but the first item number 1, that is the legislation as it stood at the time of Applicant A and before the Migration Reform Act 1992 (Cth) and the form of the relevant provision can be seen behind tab 1. That is page 4 of the bundle, 22AA.

That was what was referred to as a two-stage process, but it took you into the definition of “refugee” in Article 1, but there were two steps. One was the recognition by the Minister that you are a refugee, and the second was an application for a visa that came in through the regulations. The next step is the Migration Reform Act which is the part behind tab 3, and I will take you to the explanatory memorandum in a minute, but that brings in the provision that has never changed in substance since that time. You see at page 12, 26B(2).

Now, that becomes section 36 and that provision has never changed, but it brought about what was regarded as a technical change. If you look behind tab 18 at page 223, at the bottom of the page, paragraph 27, it was intended to bring about a technical change so there was one step in the process. In NAGV, the Court also held that part of its purpose may have been to clarify what was identified as an ambiguity. The ambiguity was whether or not the whole of Article 1 was picked up or just the definition in 1A(2) of “refugee”, and NAGV holds, in effect, that the whole of Article 1 was picked up.

So, from our perspective, nothing has changed since the Migration Reform Act in substance and the Migration Reform Act in substance intended to bring no change to that which had been the question before that time, which was the regime considered in Applicant A. Now, if you then turn to the next page of the explanation of the legislation, you see under items 5 and following the whole series of changes that are - - -

CRENNAN J: What part are you at now?

MR GAME: I am sorry, your Honour, I am on the second page of the explanation and I am on item 5. Now, what you see there at item 5 and it is a good example, are provisions that are cutting down protection obligations and the first of those – I will not go through all of them, but the first of them is an example at page 26 and there are a series of amendments of this kind that follow. But we see a whole section devoted to explaining the purpose of the subdivision and it is different from what happens when 91U comes in, which I will come to shortly. That is an example behind tab 5. Then tab 6, 7 and 8 are all similar changes. Then when we come to tab 9, tab 9 is a section that brings in 65(3) and you see it at page 54, and there is an example of cutting down protection obligations in respect of say third countries and that is how it is done by the legislation.

Now, that provision had been enacted at the time of the decision in NAGV, but NAGV concerned an application made before the introduction of this provision. So Justice Kirby considered it in some detail, but the Court did not actually specifically deal with 65(3) in NAGV. But the Court did in NAGV deal with those earlier amendments such as the one behind tab 5. So they dealt with, in the context of that decision, provisions such as, say, third country provisions appearing behind tab 5.

Then you go to tab 11 and tab 11 is the critical provision in terms of the respondent’s argument, but if you look at page 95 then there is the – so 36(2) is repealed, but re-enacted in identical terms except that it brings in spouse. Now, for the respondent’s position to succeed, section 36 would have to have a different meaning at that moment than it previously had. Perhaps if I just take your Honours first to the explanatory memorandum in respect of that.

FRENCH CJ: Is this going to the question whether ultimately 91U as a matter of construction somehow brings in the serious criminal offence limb of Article 33(2) to the scope – to the question whether Australia owes the applicant protection obligations?

MR GAME: That is right. That is it, that is all there is to it. So the explanatory memorandum, which is behind tab 19, shows that all this intended to do was to bring in spouses and you see that on page 6 at 230 and there is an explanation in paragraph 8 for why it came in, so that is not a material change. I am sorry if it is a slightly circuitous route, but it does come to the question. At page 96 of this bundle you will see other provisions that came in and you will see they are actually in a different form than the ones that came in in the earlier provisions, but 91R feeds into Article 1A(2) and it may be cutting down - it is certainly defining persecution in a particular way and it may be stepping away from some of what might be described as the ad hominem aspects of persecution.

In any event, whether it is narrowing, it is a defining or confining of what is meant by - 91S is doing – it again does not matter for this case but it is defining a particular social group for Article 1A(2) in a particular way, the same with non-political crime. Then when you come to a particularly serious crime, then that is - the whole of the respondent’s case is that 91U has brought about a sea change in the interpretation of section 36(2), and that is the whole case actually.

We say that 91U has work to do and work to do can be identified both in terms of section 501 – the direction under section 499 - and the Minister’s discretionary decision under section 502 but there is nothing about Article 91U that feeds into the definition of “protection obligations” under section 36(2). That is the statutory framework as it exists and that kind of embodies the legislative context in which you are considering this case.

Now, if you just look at the summary again. So I have dealt with tag 11. So tag 12, which you do not need to go to but if you just look at the summary here, we have set out the relevant provisions. They are 36 – 65 has to be taken with 36 and so 36 and 65 in combination, then 499 is about the direction that may be given and there is policy that I will come to in a moment. Then there are 501, 502 and 503. If I just make a comment about 501.

I am sorry, just if your Honours go to page 132 which is the legislation at the relevant time you see section 500 which was the subject of a good deal of attention obviously enough in Plaintiff M47, and it talks about decisions relying on one or more of the following and that is the issue considered in M47. If we go to 501(6)(d)(iv) at 139 we say that that even more expressly picks up the second limb of Article 33(2) of the Convention. Section 502 is the other section I referred to where it says:

If:

(a) the Minister, acting personally –

Then it talks about refusing or cancelling under Articles 32 or 33(2). So there is a place apart from the other places where Article 33(2) comes in. Now, from there I would like to take the Court to our outline.

KIEFEL J: Section 501 does not bring in Article 33, though, does it? It has its own words.

MR GAME: No, your Honour, it does not. It has its own definition.

KIEFEL J: That is not the least because section 501 operates with respect to all kinds of visas rather than protection visas.

MR GAME: That is correct, but the entry point for this is section 65. When I say the entry point, section 501 is a general provision that applies to all different contexts but section 501 in this context has to be looked at through the spectacles of section 65 and the language – “the grant of a visa is not prevented by” and then the words, various provisions “501”. That frame of section 65 – 65 obviously was also considered in Plaintiff M47 and that is a form of provision which has been in since the Migration Reform Act 1992. I did not take you to the provision but it is a mirroring provision.

KIEFEL J: One of the questions which was posed in M47 was that section 500(1)(c) assumes a power to consider the articles but given the decision in NAGV it cannot be section 36(2). The Minister does not, in this case, suggest that we should revisit NAGV.

MR GAME: That is right. So, we say that this case is governed by NAGV. I do not mean to be opportunistic about it but the Minister’s position in this case is in direct contradiction to the Minister’s case in Plaintiff M47 because the Minister was saying not only was it not brought in by section 36, they were saying it was not brought in at all. So that is the kind of tension in the position in this case.

KIEFEL J: But your point is that it is not – to meet the Commonwealth’s case - is that it is not brought in by 91U and 91U does not operate to modify in some way section 36(2) which would distinguish NAGV.

MR GAME: That is right. So if I go to the outline and I think again I can probably do this in a summary way, but all of the propositions in paragraph 1, the proposition is that it is self-evidently put by us from our written submissions and I do not wish to elaborate on those - so we say this case falls squarely within NAGV. It also falls squarely within Plaintiff M47. That is paragraph 1 in a nutshell. Paragraph 2 – now, I wanted to pause for a moment on 2.2 and just have a look at Article 33 briefly.

We say the Court has been through this before, but we say that we saw a way in which these ideas can be brought into protection obligations. We saw that in section 36(3). We saw that in safe haven visas and the like, and 36(3) is a very good example of how you do it. But if you go to Article 33, it would appear that the respondent is saying that only the second limb of Article 2 is brought in because it is not challenging NAGV or M47. But that cannot be right because of the way in which 2 follows 1. But if you turn 1 into an obligation, it says:

No Contracting State shall expel or return (‘refouler’) a refugee –

Our first point is that this presupposes the owing of obligations. But if you try and turn that into an obligation – again, it is an obligation to a State – so it becomes if a State can expel two territories where life or freedom not threatened by X, Y or Z then there is no obligation. So by turning an open-ended protection of that kind into an obligation you turn the whole thing on its head. So that, for example as in NAGV, no Jew could get refugee status because of the right to return to Israel.

So by turning it into an obligation you have actually turned the exercise of determining protection obligations upside-down. Now, the other thing is that historically there is a relationship between the ideas in Article 1A(2) and Article 33. But we saw how legislature has limited or defined protection obligations in Article 1A(2) and yet you would have this quite different exercise of a much broader kind, not so constrained. Not even necessarily constrained to ideas of persecution, and not necessarily constrained in respect of the country from which the person was a refugee in the first place. So we say that cannot work.

Then when one comes to the second leg, it speaks of the benefit. Now, if it is a criterion then you will not get to the benefit because of the open-endedness of 1. But nor could it be the case that Article 33(2) second leg would come in but not the first, which is Plaintiff M47. So we say it cannot actually be made to work even if – anyway that is the argument. So that is all I really want to say about 2.2, and then we trace through in Plaintiff M47 how Article 33(2) and section 501 was dealt with.

If I could just come back to your Honour Justice Kiefel, we do appreciate that your Honour had a slightly different perspective as to the way in which it was brought in in respect of 501, but there are nuanced differences, but for the purposes of this case it is not necessary to get to the bottom of those differences. Then we make the point that I have already made really which is how 36(2)(a) came into the legislation. Then what we say about 91U is set out there in three propositions, 4.1 to 4.3, and I have actually already made those three points. So that is the whole of the first part of the argument. The second part of the argument - - -

FRENCH CJ: Now, when you say the first part of the argument, you mean the argument on the first ground?

MR GAME: That is right, yes.

FRENCH CJ: We might be assisted to hear Mr Kennett in response on the first ground at this point.

MR GAME: Just before I sit down, at page 202, the first sentence, what I have said is the ground actually caught by the first sentence of paragraph 2 on that page.

FRENCH CJ: Thank you. Yes, Mr Kennett.

MR KENNETT: Your Honours, I wanted to start with three short propositions about Plaintiff M47, then move to NAGV and then come more directly to the construction and what we say is the effect of section 91U. Firstly in relation to M47, the facts of that case raised for consideration only the operation through the provisions of the Act of, what I call for the sake of shorthand, the “national security” limb of Article 33(2). It was that aspect of the article which gave rise to issues of inconsistency between public interest criterion 4002 in the regulations and the structure of the Act, if and to the extent that the Act provided for a protection visa to be refused in reliance on Article 33(2).

Secondly, and consequently, the discussion in that case of the effect and the propositions of law to be derived from NAGV in the argument advanced for the defendants, and in the reasoning of the Court needs to be understood in that light. If, as we submit, the “serious crime” limb of Article 33(2) can be given a different operation by reason of amendments to the legislation that postdate the facts of NAGV, then that different effect was not relevant to the situation that arose in M47, and did not need to be addressed in that case.

The third simple point about M47 is that section 91U is not discussed in the judgments in that case as a potential distinguishing feature between the two limbs of the article. There was no reason why it should have been. It is mentioned, so far as I have been able to find, twice in the reasons of the Court, at paragraph 96 by Justice Gummow and at paragraph 425 by your Honour Justice Kiefel, and only by way of noting that it is there. No propositions are drawn from it as to the operation of Article 33(2) as a whole or as to consequences for the outcome of the case.

Hence, we submit, nothing in M47 stands in the way of the distinction that we seek to make between the two limbs of Article 33(2). We do not accept that there is a contradiction between the position of the Minister here and the position of the Minister in that case.

HAYNE J: Well, can I understand the statutory points that you are making? Section 91U is introduced by the words:

(1) For the purposes of the application of this Act and the regulations –

We are relevantly concerned with the purposes of the application of the Act, are we?

MR KENNETT: Yes.

HAYNE J: Which words of the Act are we concerned to apply in the light of 91U?

MR KENNETT: We say, for reasons which I will come to, that it has to be section 36(2).

HAYNE J: And in particular?

MR KENNETT: In particular the question whether a person is owed protection obligations.

HAYNE J: So that the expression “to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended” is given differential application of Article 33, is it?

MR KENNETT: Yes, your Honour, we have to accept that.

HAYNE J: Why would one read the statutory expression in section 36(2) as engaging differently with different parts of the one article of the Convention?

MR KENNETT: Your Honour, because Parliament has come back to it in 2001, re-enacted it, and re-enacted it in company with a series of interpretive provisions, one of which we say is section 91U, which is impossible to understand unless it is doing some work on section 36(2). We seek to give it that work.

GAGELER J: Is that right, Mr Kennett? If you look at section 31(3), the regulations can prescribe additional criteria for a visa of the class referred to in section 36, so it would be possible, would it not, for a regulation to prescribe as an additional criteria for a protection visa that the person not be a person within Article 33(2)?

MR KENNETT: Yes, it is possible that that could be done.

GAGELER J: And in those circumstances, you would be applying, or the Minister or a delegate of the Minister would be applying section 65(1)(ii) to that criterion.

MR KENNETT: That would be right. It is possible that regulations could be enacted whose meaning could be governed by section 91U. Visa criteria could be enacted in the regulations whose meaning would be governed by that provision. That leaves us still asking though what is the application of this Act that the drafter is referring to in the first line of section 91U(1).

GAGELER J: Would it not be section 65(1)(ii) in those circumstances?

MR KENNETT: We would say not. It is literally an application of the Act but that is a situation in which the application of the Act depends solely on the criteria in the regulations and it is the operation of the regulations that are being governed by the interpretative section rather than the Act per se.

KIEFEL J: Your concern is that section 91U does not have any work to do. In its terms it is only meant to clarify a meaning in the article for the purposes of the application of the Act. Your paragraph 17 of your written submissions appears to assume that section 36(2) can be the only provision of the Act in which Article 33 could apply. That is coming awfully close to saying NAGV is incorrect but you are not saying that.

MR KENNETT: We are not saying that, no.

KIEFEL J: No, all right. I just want to make absolutely clear what your position is.

MR KENNETT: Yes.

KIEFEL J: But you have to look for – given NAGV, you are driven to look for how Article 33 can apply elsewhere in the Act because there are a number of indications, including 91U, which assume some consideration may be given to Article 33, but at paragraph 21 you put out of consideration provisions such as section 501 and how that might be connected back to section 65(1)(a)(iii).

MR KENNETT: Yes. Your Honour, because of NAGV, the correctness of which we accept, we are driven to seek a distinction between the legislation as considered in that case and the legislation now in effect. The reasoning of the Court in NAGV was of course directed to the state of the Act at that time and expressly refrained from consideration of the 1999 amendments which had introduced section 36(3) because they were not relevant to the facts of that case.

If after the events in NAGV, Parliament amends section 36(2) so as to give it a different operation then, of course, one gives it that different operation and the reasons in NAGV in that respect recede into history. Our submission that the Act does now have a different operation is based on section 91U.

KIEFEL J: Mr Game says that it is not necessary to resolve how and where section 91U may operate in relation to sections 501 or 500 but those differences of approach seen in M47 it is not necessary to resolve them and it may not be. It may be that the only question here is whether or not Article 33 can be seen to apply in section 36(2) and we do not need to get into the other areas. At paragraph 21 of your written submissions you put aside provisions where express reference is made to Article 33, it would seem, simply on the basis that section 91U was a subsequent enactment, but does not that suggest - the subsequent enactment of section 91U simply underscores the fact that it is meant to clarify a term in an article which is referred to in other provisions of the Act, the extant provisions?

MR KENNETT: The efficacy of those other references to it in the Act was a matter of intense debate in M47 and like my friend I do not propose to revisit that.

KIEFEL J: But then you cannot really make the submission that section 91U is otiose, can you, unless you grapple with them?

MR KENNETT: We do grapple with – we do have something to say about section 501 which is the route by which our friends would give section 91U relevance and give operation to the references to Article 33 and section 500 and other places. Section 501 really seems to be the point at which we join issue in that aspect of the case. I do want to say some things about that but it might be best if I say what I was going to say about the construction of section 91U, the relevant form of which can be seen in my friend’s bundle of legislation at page 126 behind tab 12.

I said some things in response to Justice Hayne and in response to Justice Gageler about the first line of subsection (1). What the subsection does is to provide that Article 33 of the Convention has effect on a particular basis that is on the basis of a defined understanding of the term “particularly serious crime”. We submit that the words “has effect” are significant and that those words themselves must be given some effect. They mean, we submit, that section 91U does not only refine or modify some effect, whatever that might have been, that Article 33(2) previously had as part of the regime of the Act.

What this section also does is put into legislative language an intention that Article 33 henceforth is to have a particular effect. So it does not only presuppose a role for Article 33(2), it enacts a role for Article 33(2) and the task is to seek to understand what that enacted role is. So we say even if it is possible to say of section 91U, as the Minister said of other provisions in M47 that Parliament here was proceeding on a misconception about the state of the law and that Parliament wrongly presupposed that Article 33(2) had some effect through the medium of section 36(2), that would not be the end of the inquiry because the section under consideration, section 91U, stipulates a new and, in some respects, different effect which Parliament, speaking at the time of its enactment, intends Article 33(2) thenceforth to have.

So that if it be right that a misconception underlies it, then the section does not for that reason fail entirely; rather, the section has to be given effect by divining the intention as to future operation of the Act that is inherent in it. We submit that the only sensible understanding of that intended effect is that it was to insert the serious crime limb of Article 33(2) into the consideration under section 36(2) of whether protection obligations were owed to a person. We say that because that is the only application – that is the only respect in which, so far as we have been able to discern, the application of the Act could depend on the concept of a “particularly serious crime”, as defined in that Article.

FRENCH CJ: Well, it sounds as though you are saying that that is an assumption upon which this section was enacted because textually the section says no more, does it, than that wherever you have to apply Article 33(2) in the Act you treat references to “particularly serious crime” thus.

MR KENNETT: Your Honour, we submit that it says a little bit more than that because it does not confine itself to giving a dictionary-style definition of that term; it asserts or, we would say, provides that Article 33 has effect. What that effect is - - -

FRENCH CJ: Well, the legislature wanted it to have a different effect from that which it had been given previously; that is what the Minister said. The courts were giving too generous a construction to the concept of “a serious offence”, I think.

MR KENNETT: Yes, that is true.

FRENCH CJ: So the logical structure of it is, well, wherever you give effect to it, give effect to it in this way.

MR KENNETT: Well, that is part of it, your Honour, but it is not only a statement about an understanding of the previous law, it is an enactment. It is intended to operate as an enactment, so when Parliament says the article has effect on a particular basis the task becomes to seek to identify that effect and to give it that effect. So we say that this is a provision modifying the operation of section 36(2) in one fairly detailed respect and in that respect supersedes the reasoning in NAGV. We seek to support that understanding by reference to contextual considerations, by reference to the structure, then by reference to the amending Act by which section 91U was inserted and, finally, by reference to the extrinsic materials.

The first contextual consideration is one I have already mentioned, which is that section 91U does not appear to have any work to do in relation to provisions of the Act, leaving aside possible future regulations, unless what it does is to modify section 36(2) in the way that I suggested. Of course, a construction which renders a provision idle is a construction that is to be avoided if there is a reasonable alternative, and we have given authorities for that proposition in paragraph 20 of the written submissions at footnote 8.

Our friends suggest that the work that section 91U does, if we understand them correctly, is in giving content to the character test, and in particular section 501(6)(d)(v), which is on page 139 of the legislation bundle. This, of course, is an aspect of the character test under section 501 which was identified in Plaintiff M47 as a way, or possibly the way, in which a decision might be made in reliance on Article 33(2), and thus a way in which section 500(1)(c) could have some operation.

The proposition, though, that section 91U does work through section 501 however, we submit, cannot be right, because the character test in section 501(6) does not use the phrase “particularly serious crime”, and because (d)(v) is clearly not circumscribed in the same way that Article 33(2) is circumscribed. The article, as of course your Honours will remember, begins from the proposition that there is a refugee who has committed a particularly serious crime. Subparagraph (v) of paragraph (d) does not require the person to have committed any crime at all. It requires only an inquiry into possible future conduct.

It is difficult – we would submit, impossible – to see any effect that section 91U could possibly have as a matter of statutory construction on the operation of that test. That is so, even if it be right that as a matter of policy under section 499 the Minister has chosen to align the administration of this provision in some way to Article 33(2). The level of statutory provisions, 91U and 501(6)(d)(v), simply passes ships in the night.

It is also put against us in the written submissions of our friends that our construction of section 91U renders section 501 irrelevant or otiose, or that it creates an incongruous overlap or duplication between two inquiries. As to that, we would say first, of course, as your Honour Justice Kiefel pointed out, section 501 applies to all visa classes and, so far as protection visas are concerned, has operation according to its terms, which includes providing a source of such power as the Minister has to rely on the “national security” limb. It clearly has a considerable amount of work to do if our construction of 91U be right.

The second thing we would say about that is that the requirements of – this is as to overlap or duplication – the requirements of section 65(1)(a) of the Act which your Honours see on page 112 of the bundle are of course cumulative, so that if a protection visa applicant fails at the section 36(2) stage which is under section 65(1)(a)(ii), then there is no need for consideration of possible application of section 501, and of course vice versa, if the Minister decides at the threshold that here is an applicant of bad character whose visa ought be refused as a matter of discretion under section 501 then, given the structure of section 65, there is no need then to go on and consider the detailed visa criteria.

So that the only situation as we would see it that might lead to two similar inquiries needing to be undertaken, on our construction of the provision, is the situation where the applicant survives consideration under Article 33(2) at the section 36(2) stage of the process, perhaps because he or she has committed a serious crime but is not considered to be a danger to the community, something of that sort.

But a question nevertheless remains as to whether as a matter of discretion there should be a refusal on character grounds. Then there might be a situation in which two inquiries would take place into the same applicant’s situation which would overlap to some degree, cover to some degree the same ground. We say that that degree of overlap between two decisions under statute is nothing unusual and a degree of duplication, if it be duplication, and is not a reason for giving section 91U a construction that we submit renders it idle.

HAYNE J: These submissions about the operation of section 91U assume that the only relevant audience to which it is speaking is the Australian domestic audience, do they not?

MR KENNETT: Yes, your Honour, that is right.

HAYNE J: Is it an available construction of section 91U that it is a statutory mechanism for informing the exercise of discretionary powers, for example, to remove or cancel, remove before grant or cancel after grant, in a way that by domestic legislation is evidently conformable with the international obligations under the Convention? Take it by stages. First, it would be open to Australia, would it not, to identify for itself what is “a particularly serious crime”, as that expression is used in Article 33. Australia’s domestic identification of that would be accorded a – I search for neutral terms – a degree of respect in the international community, is that right?

MR KENNETT: Yes.

HAYNE J: Why cannot 91U with its generality for the purposes of the application of this Act and the regulations to a particular person be read as directed, at least in part, to the international community as saying this is the criterion which this Act requires the Minister to take to account in the exercise of discretionary powers to yield a result that will be conformable with Australia’s international obligations?

MR KENNETT: Your Honour, we would submit that the primary purpose at least of legislation is not to speak to the international community but to speak to people in Australia about the laws that bind them - - -

HAYNE J: And immediately it is directing itself to the Minister and the exercise of the discretionary powers of the Minster, is it not?

MR KENNETT: We would submit not, your Honour, because the discretionary power is not defined in the statute in terms which reflect the presence of Article 33 or - - -

FRENCH CJ: This is the statute, insofar as these provisions are concerned, which is dealing with the implementation of our obligations under the Refugee Convention. Why would Article 33 not play a role in the exercise of the discretion under 501?

MR KENNETT: There is no doubt that the effect or non-effect of Article 33 in a particular case would be at least a relevant consideration in the sense of one that the Minister would be entitled to take into account. We would resist the proposition, given the very broad terms of the section 501 discretion, that there is any obligation on the Minister to confine himself in exercising it to situations where return of someone is permitted by international law.

FRENCH CJ: But suppose no obligation does 91U say anything more to the Minister in that circumstance than this? If you are going to think about Article 33 in the exercise of your discretion this is how you are to think about it?

MR KENNETT: We submit it does, your Honour, because it speaks to the application of the Act. It does not speak, certainly in terms, to the - - -

FRENCH CJ: It is the application of discretion under the Act, is it not, the application of the Act?

MR KENNETT: It is a discretion under the Act, yes but it does not speak, at least in its terms, to the exercise of discretions under the Act, let alone stipulate criteria for the exercise of such discretions or considerations to be taken into account in the exercise of such discretions. We would submit that if its intended operation was to guide or confine exercises of power under section 501, then firstly, it would be likely to be located in the Act with section 501.

HAYNE J: Why, when 501 is perfectly general, it can apply to anyone having any visa?

MR KENNETT: Yes, that is right. But, secondly, there would be, we would submit, some commonality of language between the phrase defined in section 91U and the language of section 501. Ordinarily, at least, a statute does not define a phrase unless the phrase has some meaning in the statute, we would submit. So, for example, it would be a matter for the Minister to decide under section 499 what, or in the exercise of the discretion, personally, himself under the provisions of section 501 that provide for that to decide what the criteria are to be or the factors are to be for the exercise of the discretion and those criteria might or might not be expressed in terminology that reflect the Convention in section 91U.

HAYNE J: Take the case of the person who is sentenced to 18 months. That person fails the character test in that they have a substantial criminal record for the purpose of 501(7)(c), do they not?

MR KENNETT: Yes.

HAYNE J: But they have not committed a serious Australian offence, see 91U(2)(b)(ii). Now, if a person is someone to whom Australia owes protection obligations in the sense that they are a person who fears persecution for a Convention reason, first, may the Minister, in determining whether to cancel or to expel before grant, take account of the fact that the person fails the character test but has not committed a particularly serious crime within 91U?

MR KENNETT: I think, your Honour, I should get instructions about that question before I - - -

HAYNE J: I had not intended to hand you a ticking time bomb, Mr Kennett. I thought the answer was obviously yes.

MR KENNETT: Well, as a matter of – perhaps if I could take it in stages. Clearly the person fails the character test and the discretion is available. On the face of the section it is open to the Minister then to decide in the exercise of that discretion that at least, and this speaks to the present case, in the case of an application for a visa that the visa ought not be granted. Whether that leads to the expulsion of the person back to the country where he or she fears persecution involves some further stages and some exercises under section 198 that may be complicated. But we would submit that it is open to the Minister to decide in the exercise of section 501 that in a case such as your Honour puts to me a visa ought not be granted as a matter of discretion.

The second of the contextual considerations that we rely on in relation to section 91U is its location in Subdivision AL of Division 3 of Part 2 in company with various other sections and my friend has mentioned these to the Court which obviously – well, a subdivision which is headed “Other provisions about protection visas” and alongside a series of provisions whose effect is plainly to dictate or modify, in various respects, the operation that the Refugees Convention is taken to have in particular cases.

So this is on page 124 of the legislation bundle. Your Honours will see section 91R uses the same opening line as 91U and puts a gloss, in effect, on the definition of a refugee by stipulating the kind of harm that must be in prospect and that the harm must be the essential and significant reason and so forth. Section 91S, again, uses the same opening line and plays a similar structural role. It identifies particular kinds of fear that are to be disregarded in determining whether a person has a well-founded fear of being persecuted on the particular social group ground. Section 91T governs the operation so far as Australian law is concerned of Article 1F of the Convention.

Now, all of these are provisions which are plainly directed at shaping or modifying or restricting the notion of, or the question of when Australia owes somebody protection obligations for the purposes of section 36(2) and we submit that the natural - - -

FRENCH CJ: Through the prism of whether the person is a refugee.

MR KENNETT: Yes, they go to that question. We would submit that the natural inference is that section 91U was intended to do similar work. In light of what your Honour the Chief Justice just put to me, it does not go to the heart of the definition of a refugee. It does something more similar, although still not identical, to what section 91T does in shaping one of the other provisions of Article 1 which excludes people from the Convention. In terms of the structure of the Act, we submit that its location in this subdivision alongside those provisions is an indication that it too was intended to have work to do on the content of section 36(2).

We next refer to the amending Act which brought section 91U into effect, and that is behind tab 11 in the bundle. Your Honours see at page 96 the item that inserts the entire subdivision in one fell swoop, some further indication, we would submit, of a commonality of intended operation between the various provisions of it, and then at page 95 one sees the repeal and replacement of section 36(2).

So that although it is certainly true to say that the current section 36(2)(a) is in practically identical language to section 36(2) as considered in NAGV, that language has as a matter of slightly closer analysis been repealed and replaced by a new enactment; that is what your Honours see in item 2 on page 95. That new enactment exists in the shadow of Subdivision AL enacted at the same time, including, as we point out, section 91U.

So the legislative intentions and understandings that are inherent in the new section 36(2)(a) are to be identified and understood we would say partly in the light of what cases have said about the former provision, cases including NAGV, but partly also in the light of the interpretative provisions that accompany that new enactment. The final consideration that we mention is the extrinsic materials which, to the extent that they are useful in identifying the mischief at which this was directed, support the proposition that the mischief was something to do with section 36(2) and not something to do with other aspects of the statutory scheme.

Could I take your Honours first to the explanatory memorandum which is behind tab 19 and just note the way in which what appears to be the intended operation of section 91U is described in the last dot point at the bottom of page 227? Then finally in the Minister’s second reading speech behind tab 21, page 252 of the bundle, in the left-hand column at about point 8, the Minister refers to a major challenge constituted by what are said to be:

increasingly broad interpretations being given by the courts to Australia’s protection obligations –

and notes that –

The convention does not define many of the key terms it uses -

and of perhaps closer relevance to section 91 - - -

FRENCH CJ: That covers persecution, it covers the sur place problem, a whole raft of issues, does it not?

MR KENNETT: Yes, that covers the whole gambit of issues that were addressed in Subdivision AL. That provides an indication of the intended target of this amending Act as a whole. Of some closer relevance to section 91U, on page 253 in the left-hand column at about point 4, the Minister says that:

Exclusions for serious non-political crime –

That is 91T, I think, Article 1F –

and particularly serious crime –

That is 91U –

will also be defined to ensure that only those people who merit protection receive it.

A lot is bound up, perhaps, in that expression about people receiving protection, but we would submit it tends to confirm that the intended operation of section 91U was to define in part the circumstances in which a person would be taken to be owed protection obligations for the purposes of the provisions of the Act that turns on that question, namely section 36(2).

GAGELER J: Mr Kennett, can I ask a further question, a more recent question of legislative history? The version of the Act that I think is applicable to the circumstances of the present case is behind tab 12, and section 91U appears at page 126, and that is the provision as originally inserted into the Act. We have also been given at tab 16 a copy of the Act as it currently exists, and at page 196 we see section 91U in a different form. So section 91U as it currently exists, it appears re-enacted after NAGV, takes that form. Do the extrinsic materials accompanying that more recent re-enactment shed any light on what parliamentary understanding may have been at that time?

MR KENNETT: I cannot help with that question, your Honour. That re-enactment is one that postdates the relevant time in this case. Section 91U as relevant to this case is the version that is behind tab 12, and the - - -

FRENCH CJ: Did that amendment just move the definition somewhere else?

MR KENNETT: I am sure that is right, your Honour, but I would need to check.

FRENCH CJ: Yes.

BELL J: This was an amendment introduced as part of the complementary protection provisions, was it not, and there was, in light of the changes introduced with respect to the recognition of our obligations under the ICCPR and the Convention Against Torture, there were significant changes made, is that so? It was in that context that 91U was, as it were, slimmed down.

MR KENNETT: Yes, I am sure that is right, your Honour, although I do not have the references at my fingertips. Those are the submissions of the Minister on the first issue in the case.

FRENCH CJ: Yes, thank you. We will just hear in reply at the moment on that ground, Mr Game.

MR GAME: I really just want to make one point, which is in answer to your Honour Justice Hayne’s question. One way in which it would work is if you look at page 132 of the bundle, section 499(2), if the Minister was giving directions, and the Minister has given directions, which you have, which purport to pick up all of our various Treaty obligations, torture and so forth, then under section 499(2) if the Minister gave a direction that was inconsistent with section 91U then it would be ultra vires, so that is how section 91U would fit. So section 91U would be additional to the character requirement in the case of a protection visa. That is one point.

The other point – and it is really just a slight elaboration of this – is that if one looks at the history of Article 33(2), Article 33(2) is really a template and it is left to individual – it is a matter of State practice as to how Article 33(2) is implemented. So one needs to look at – so for the State to say what is a particularly serious crime is an aspect of, shall I say, spelling out how the template applies when you look at all of your protection obligations. That is all I wanted to say on that question.

FRENCH CJ: The Court will adjourn briefly to consider what course it should take.

AT 11.27 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

FRENCH CJ: The Court will consider this appeal on the arguments thus far put. The Court adjourns until 10.15 am tomorrow.

AT 11.29 AM THE MATTER WAS ADJOURNED