Plaintiff B15a by his father B15b as litigation guardian & Anor v Minister for Immigration and Border Protection & Anor [2015] HCATrans 150 (19 June 2015)

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Plaintiff B15a by his father B15b as litigation guardian & Anor v Minister for Immigration and Border Protection & Anor [2015] HCATrans 150 (19 June 2015)

Last Updated: 1 July 2015

[2015] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B15 of 2015

B e t w e e n -

PLAINTIFF B15A BY HIS FATHER B15B AS LITIGATION GUARDIAN

First Plaintiff

B15C BY HIS FATHER B15B AS LITIGATION GUARDIAN

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 19 JUNE 2015, AT 10.15 AM

Copyright in the High Court of Australia

MR E.P. MAC GIOLLA RI: I appear for the plaintiffs. (instructed by Fisher Dore Lawyers)

MR S.P. DONAGHUE, QC: If it please the Court, I appear with MS A.L. WHEATLEY, for the defendants, your Honour. (instructed by Clayton Utz)

HER HONOUR: Yes, Mr Mac Giolla Ri.

MR MAC GIOLLA RI: My learned friend has suggested that he might go first.

HER HONOUR: Well, I suppose that is right. It is really in the nature of a summons for dismissal, is it not?

MR DONAGHUE: In substance it is, your Honour, so we are in your Honour’s hands. It did seem to me it may assist your Honour more if we go first.

HER HONOUR: Yes, I think that is right. Thank you, Mr Donaghue. I have read the material and I have read the submissions, thank you.

MR MAC GIOLLA RI: Thank you, and perhaps just as a housekeeping matter, I can indicate that the plaintiffs will not proceed against the Commonwealth of Australia.

HER HONOUR: Have you filed a notice of discontinuance against the Commonwealth?

MR MAC GIOLLA RI: No, I have not, but I can undertake to do that.

HER HONOUR: Thank you. Yes, I will just note that. Yes, Mr Donaghue.

MR DONAGHUE: Thank you, your Honour. As your Honour knows, this is the first hearing on an application to show cause and one of the options available to your Honour under rule 25.03.3 is to dismiss the proceeding, in effect, by analogy with the old order nisi procedure under the old rule in the event that we can persuade your Honour that the case is not arguable.

HER HONOUR: Yes.

MR DONAGHUE: We filed submissions and your Honour has, I hope, seen the response of submissions that my friends filed a couple of days ago.

HER HONOUR: Yes, I have.

MR DONAGHUE: In respect of evidence, your Honour, can I read the affidavit of Deirdre Marie Russack affirmed on 10 June 2015?

HER HONOUR: Yes.

MR DONAGHUE: There are really only, in our submission, four key facts and they are not controversial. The first fact is that the father of the plaintiffs is an unauthorised maritime arrival under the Act. The second is that the mother of the plaintiffs is not an unauthorised maritime arrival under the Act. The third is that at the time that the plaintiffs were born, which was on 16 August last year, their father held a bridging visa. That is important because it means when they were born they were lawful non-citizens - - -

HER HONOUR: Yes, I appreciate that.

MR DONAGHUE: - - - and that puts them in a different position to the children who were dealt with by the Full Federal Court in the B9 Case late last year.

HER HONOUR: But it also means for the purpose of the later provision that they only have that status by dint of holding the bridging visa and that puts them in a particular category.

MR DONAGHUE: Yes, indeed, and the fourth key fact is that at the time that they lodged the protection visa that is in issue in this proceeding that bridging visa was still in force, so that they did not at that time fall within the scope of the 46A bar on lodging a valid visa application. So I think that those facts are uncontroversial and it is really from that foundation that the argument should, we submit, proceed.

Can I take your Honour briefly through the background of the way the arguments evolved in order to identify what we submit are the two essential points that your Honour needs to decide. At the time that this proceeding was commenced in April of this year, it is clear, in our submission, that the plaintiffs had overlooked the provisions of Schedule 6 of what we have called the RALC Act. In our submission - - -

HER HONOUR: Well, I think they acknowledge that.

MR DONAGHUE: Yes.

HER HONOUR: Yes.

MR DONAGHUE: So, in a sense, the argument that they were expecting to advance in this proceeding was an understandable one because, on the law, leaving aside the RALC Act, they were right – so there was a good point to be made.

HER HONOUR: Yes.

MR DONAGHUE: But on being alerted to the provisions and with the submissions that the Minister has filed about the operation of the RALC Act, essentially most of what we say in writing about that Act has been accepted by our friends in their written submissions and they have identified really two arguments that we have not addressed in writing because they are new arguments.

HER HONOUR: That Act, in particular section 5AA(1A), the commencement date is 16 December, because I think the plaintiffs refer to 15 December. It is the 16th?

MR MAC GIOLLA RI: I would concede that point.

HER HONOUR: It is the 16th?

MR DONAGHUE: Yes, I think it was the day after Royal Assent and Royal Assent was the 15th so it commenced from the 16th. So, almost effectively by way of a confession and avoidance style argument, our friends say, well, you are right, that the RALC Act applies retrospectively but they advance two arguments. One is an argument that in its terms that provision your Honour just identified, 5AA(1A), does not apply which is because of the singular plural point.

HER HONOUR: Section 23 of the Acts Interpretation Act.

MR DONAGHUE: Section 23, so that is the first issue. The second issue is that it is suggested that there is a factual controversy, the resolution of which might mean that this application was finally determined prior to the commencement of the RALC Act provisions and that therefore an exception in the transitional provisions applies.

HER HONOUR: Well, the affidavit of Ms Russack is relevant to that and I could do with a little bit of assistance with the annexures, following the annexures.

MR DONAGHUE: Yes, the annexures are a little opaque.

HER HONOUR: Yes, that is one way of looking at it.

MR DONAGHUE: Ms Russack deposes in her affidavit to having – in paragraph 4 - “experience in interpreting records of this type” which is why I have tried to have them pull out what they show.

HER HONOUR: Yes, I think you need quite a lot really, would you not?

MR DONAGHUE: Your Honour, could I just park that issue and deal with that evidentiary question when I get there. There is also a suggestion in our friends’ submission of a third argument about improper delay.

HER HONOUR: Although they acknowledge that there is no evidence of that.

MR DONAGHUE: Yes.

HER HONOUR: There would not seem to be any inference of delay available.

MR DONAGHUE: That is what we would say and if I need to say anything in reply I will but I do not propose to say anything else about that. So, your Honour, can I deal with the singular plural section 23 argument first? If your Honour has the provision in question, 5AA(1A), you can see that it is adding to the existing definition that was in the Act, so it inserts another subsection:

For the purposes of this Act, a person is also an unauthorised maritime arrival –

So it is a different set of circumstances if you satisfy (a), (b) and (c), and the provision in question is (b):

a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) –

So that takes one back to how subsection (1) applies to the parents and, as I have said earlier, it does not seem to be in contest that the father is an unauthorised maritime arrival under subsection (1) and the mother is not. From that factual state of affairs, our friends say, well, the proper reading of that provision is that it does not apply because it requires both of the parents to be unauthorised maritime arrivals by reason of subsection (1), and because the mother is not the section does not apply. That is said to follow from section 23 of the Acts Interpretation Act which, as your Honour knows, says words in the singular include the plural and words in the plural include the singular.

I should say at the outset, your Honour, we do not suggest that there is any contrary intention that displaces the operation of section 23. The reason that we say that is because it is section 23 that means that if it in fact happens that both parents are unauthorised maritime arrivals, this provision applies. If the singular did not include the plural then both parents would take you outside of the operation of the section. So we readily accept that section 23 applies to this provision. We just say that the provision does not operate in the way that our friends suggest.

In effect, your Honour, their argument amounts to saying that Parliament by providing that the singular includes the plural is to be understood as saying that the singular does not include the singular and that, we submit, is both untenable as a matter of ordinary language as to the meaning of the word “includes” but is also, to the extent that it is necessary to have authority for a point of this kind, contrary to authority.

Can I give your Honour two documents which I have provided to my friend? One is a case and one is an extract from the Citizenship Act. The case is a decision of the Full Federal Court in Sherzad v Minister for Immigration and Citizenship [2008] FCAFC 145; (2008) 170 FCR 105. This case – you can tell what it is about sufficiently from the headnote - effectively it involved an application for a remaining relative visa where the sponsor was a brother in Australia, the visa applicant had three overseas relatives – his mother and a sister who lived in Afghanistan and another sister who lived in Iran – and the factual position was he was in contact with two of the relatives.

He was in contact with the mother and the sister in Afghanistan but he was not in contact with the other sister in Iran, and he said the way this regime should be read is that because the visa criteria about being in contact with overseas relatives is expressed in the singular, as long as I am not in contact with one of my near relatives anywhere, I satisfy the criteria even though I am in regular contact with others. The court unsurprisingly had no difficulty rejecting that argument. The passage I am giving your Honour the case for is at paragraph [12] where, having quoted section 23 of the Acts Interpretation Act, the court said – this is a joint judgment of all three members of the court – in the second sentence:

The word “include” does not indicate that one gender or one number is necessarily to apply to the exclusion of the other. Rather, both possibilities are preserved, absent a contrary intention.

What their Honours then do in the quote under that passage is that they redraft the section inserting the plurals, as is required by section 23. Our friend attempted a similar exercise in his submissions where all the singulars were substituted for plural words but, as your Honour can see, the way the Full Court has done it there is the natural way you would expect it to be done, in my submission, which is by adding to each reference to the singular an appropriate pluralisation so that both are to operate. We submit that it is clear that that is how section 23 works and that, as a consequence, the provision in question before your Honour now in 5AA(1) is properly to be read as:

a parent [or the parents] of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) –

So that, undoubtedly in our submission, applies here. Really, in some way as an aside to illustrate the rather startling conclusions if we are wrong about that, the Citizenship Act provision I have handed to your Honour is the main provision that deals with the citizenship of people who are born in Australia, and if your Honour looks at section 12(1), you will see that it uses very similar language to the language used in 5AA(1), you become an Australian citizenship by birth if and only if:

a parent of the person is an Australian citizen, or a permanent resident –

If section 23 works, as our friend suggests, then that meant both parents would need to be Australian citizens in order to get Australian citizenship by birth and the consequence would be, in our submission, that a lot of people who think they are Australian citizens are not. So I am really seeking merely to illustrate that while there may be advantages to the applicant in this case from the construction he urges on the Court, there would be very significant knock-ons were that approach to gain acceptance.

Our friends contend that the scheme of the Act is such that the idea that the paragraph focuses on the status of both parents is in conformity with the scheme of the Act as a whole and they suggest that the status of a child tracks that of both parents. Does your Honour have a full copy of the Act on the Bench?

HER HONOUR: No, but I can have one obtained.

MR DONAGHUE: That may be of assistance, your Honour, if you can do that.

HER HONOUR: Yes.

MR DONAGHUE: I am sorry, we should have given your Honour some extracts beyond section 6. The point that I am seeking to develop is that there is in the Act in section 78 a provision that deals with the visa status of children who are born in Australia, and the way that that section works is that if one of the parents holds a visa – this is 78(1) that I am paraphrasing – one of the parents holds a visa and the other one does not, or one of them holds a visa and the other one is included within the visa of the first person, in either of those situations, the child follows the visa status of the parent who has a visa.

That is our situation here. Here the father had a bridging visa, the mother did not and so the child’s visa status followed the father and was different to the mother, so it did not need to match both. If both parents had visas, even if they are different visas, the child is deemed to get both of them. So in that respect, the child matches each parent, but again, it is not true that the child’s status is the same as the parents. It is different. It is just that it follows whichever of the parents happens to have a visa.

HER HONOUR: What happens if they both have different visas?

MR DONAGHUE: Well, then you can get multiple – then the child gets multiple visas and then will take the benefit of the most advantageous one. That is deemed to happen by operation of this provision and importantly the provision provides - subsection (3) - that various subdivisions in the Act do not apply to the grant of visas under this section. So it says:

Subdivisions AA, AB, AC . . . do not apply in relation to visas granted under this section.

What that means is – and they are all the provisions that deal with applying for visas and consideration of the criteria and then grant under section 65, but amongst the provisions that are disapplied by that subsection, 78(3), is 46A. So that when you get a deemed visa by force of that provision, none of those suite of provisions, including 46A, intersects with that grant. You just follow the status of the parent.

So that is important because our friends suggest that there are anomalous consequences that would arise from the construction that we urge, one of which is said to be that the child would be then deemed to have a visa but 46A would collide with, but that is not so because of the operation of 78(3).

The other complication, and I am perhaps descending a little bit into the weeds with this, but our friends give an example in their written submissions of a mother who holds a 457 visa and a father who is a UMA and they say, well, it would be odd if the child of such a mother was to be caught by the adverse consequences under the Act of being an unauthorised maritime arrival.

We say such a child is an unauthorised maritime arrival but that there would be no.....consequences in that situation because in that situation the child would be an unauthorised maritime arrival but a lawful non-citizen, and because they are lawful they are not caught by the 46A bar unless there is a particular deeming that takes them outside it. There is such a deeming – and I should not do this too quickly, your Honour.

Could your Honour turn to Schedule 6, attachment A to our submissions, and have a look at item 13 which is on page 122. So you will see from subparagraph (1) in item 13 that this item applies where a person is deemed to be an unauthorised maritime arrival. Then what (2) does is, recognising the point that I just made to your Honour that 46A only applies to unlawful non-citizens, it says that 46A is extended:

is taken to have applied in relation to the person at that time despite the fact that the person was a lawful non-citizen –

So it extends the reach of 46A if you are a lawful non-citizen only because you hold a visa of one of those specified kinds. So that catches the applicants here, but it would not catch the applicants in our friends’ hypothetical. So, because they would be lawful, they could apply for visas and their status as a UMA would not matter. So there is, in our submission, no anomaly. The language is clear. Section 23 cannot be read in the way that our friends suggest and so the first of the asserted reasons that there is an arguable case, in our submission, cannot hold.

The other substantive argument advanced against us is this finally determined argument, and there - if your Honour could stay with Schedule 6 and turn your attention to item 12, this is the item our friends are relying on. There are relevantly, we submit, two components to item 12 that require consideration. The first is that it applies where there is:

an application under the Migration Act 1958 concerning (or consisting of) an applicable matter –

That applicable matter concept is the concept exhaustively addressed in item 11, the previous item, and if your Honour looks at item 11(f), you will see that an applicable matter includes:

an application for a visa by a person made at any time –

So that part of item 12 is satisfied. The second part, and the more important part for our purposes today, is:

if the application was finally determined, within the meaning of that Act, before the commencement day -

the commencement day being 16 December.

HER HONOUR: This is to ensure that retrospectivity does not affect accrued rights.

MR DONAGHUE: Yes, exactly. So if it is accrued – if the visa application is done, then the retrospectivity does not affect it, but if the application is not finally determined within the meaning of the Act, then the new provisions apply. “Finally determined within the meaning of the Act” is a reference to one of the definitional provisions buried at the end of section 5 of the Act. So if your Honour now has the whole Act, section 5 - - -

HER HONOUR: Ms Associate, could I have the Act? Thank you.

MR DONAGHUE: So section 5(9), your Honour, tells us what “finally determined” means:

For the purposes of this Act, an application under this Act is finally determined when either:

(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 –

Part 5 is the MRT review and Part 7 is RRT review – or if it could have been reviewed under (b) but you have run out of time, then it is also finally determined. So the idea is that when a delegate has made a decision or the MRT or RRT has made a decision on review – so a final decision has been made on the particular application, then the matter is complete. If you cannot review the relevant decision in one of those Tribunals, then the matter is finally determined at the time that the decision is made because that is a decision that is not subject to any form of review under Part 5 or Part 7, so the “no longer” part does not matter. It is just never subject to review.

That is the position that we are in here, because a decision that an application is not a valid application is not reviewable in any tribunal, and I say that by reason of the combined operation – I do not think I need to take your Honour to them, but section 47(4) which says that:

a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

Then when you go and look at the jurisdiction of the RRT under section 411 of the Act, the RRT has the jurisdiction in relation to decisions to refuse but it does not have any other applicable head of jurisdiction. So at the time – if it were to be the case as a factual matter that someone had decided that this application was not a valid application prior to 16 December, then the visa application would have been finally determined at that point in time because it would not have been subject to review anywhere. That would suggest that item 12 might have applied.

Now, in our submission, there are three problems with our friends’ attempt to suggest at this point that there was such a decision prior to the commencement of the RALC Act. The first is that if your Honour looks at the decision that they are challenging in this proceeding, in the application to show cause it is identified on page 2:

A writ of certiorari quashing the Minister’s decision of 12 February 2015 –

It is identified in that way even though the affidavit in support of the application to show cause, which is the plaintiff’s affidavit, is the very same affidavit that they are now suggesting raises a factual controversy about whether the decision was made at some earlier point in time.

So at the time they commenced the proceeding on the basis of that very evidence, the decision was made to challenge a decision that was said to have been made on 12 February – perfectly understandable, we submit, because that is what the evidence suggests happened, but what we are now seeing is an attempt to avoid the operation of the RALC Act in a way that is quite inconsistent with the way our friends framed their own application. So that is the first point.

The second point is the evidential point your Honour asked for some help with, and if your Honour turns to Ms Russack’s affidavit, just staying with the text of the affidavit before we come to the exhibit, you will see that in paragraph 11, Ms Russack expressly says:

The plaintiffs’ applications for protection visas were found to be invalid on 12 February –

So that is her evidence, and she exhibits at DMR-2 the letter that, entirely consistently with that evidence dated 12 February, advises of the decision, the applications are not valid. It is presumably because of that letter that our friends characterise the decision as they had. In addition to what Ms Russack says at paragraph 11, at paragraph 10, she says on the basis of her review of the Department’s records, that there is no indication – sorry, that the screenshots to the affidavit from the computer database:

indicate that no decision was made prior to the determination that the [matters] were invalid –

Now, all Ms Russack could do was say, in effect, I have looked at the records of the Department and I cannot see within the records of the Department any suggestion that there was a decision made at any earlier time. Obviously we looked at that because of the plaintiff’s evidence about what he says he was told and all we can say is, having looked, we cannot see anything in the records to support that. That, we submit, is also consistent with the plaintiff’s evidence that he filed an FOI application – this is in the plaintiff’s affidavit at - - -

HER HONOUR: That is on 5 February, is that right? He filed the freedom of information application on 5 February.

MR DONAGHUE: Yes, that is correct, your Honour. He filed it on 5 February, he finally got some documents back and he said there was nothing to explain the decision. So the document production to him also supports the idea that there is not any record within the Department of any decision having been made at that time.

So our submission is that on the material before your Honour there is not really a factual foundation to conclude that there was a decision prior to 16 December, even if one could overcome the fact that the proceeding is not purporting to challenge any such decision. So from a factual matter, your Honour could be comfortably satisfied that there is not a problem. But even in the event that there were to have been such a decision, it would not matter anyway, in my submission, for this reason.

What the plaintiffs want in this proceeding is to be granted protection visas. They want the applications for protection visas that they lodged on 1 September to be decided. If they were right hypothetically that there was a decision before 16 December, that decision was invalid on their own case, and we would agree that it was invalid because at that point in time they were not UMAs, they were not subject to the 46A bar. Their application should have been considered.

If a court now quashes – were to find that there was a such a decision and to quash it, the position would be that they would have an application for a visa made on 1 September last year that had not been finally determined because the effect of the order quashing the wrongful decision would be to re-enliven that application to make it capable of being granted, and they want that consequence. But once they achieve that consequence they cannot then turn around and say, “This application that we want you now to decide - has already been finally determined” because it obviously has not been. It needs to enliven the processes that would still be carried out.

So it is akin - your Honour might recall in some of the Al-Kateb-type challenges in the last couple of years where the court has quashed the refusal, for example, on security grounds. The consequence of that was that it goes back to be decided again, and the consequence of that was that the Al-Kateb point was not reached by a majority because the detention was for the purpose of considering the valid visa application. It is exactly the same situation.

So, in our submission, even if the facts were different from the facts as we say that they are, whenever any future delegate were to come to consider this application, they would collide with the transitional provisions in item 11, and our friends could not say that item 12 was an answer to them because that would be entirely inconsistent with their efforts to obtain the visas that they seek.

So, by what I hope has not been too convoluted a method, your Honour, we submit that perhaps understandable as our friends thought their case was at the time that it was commenced, once the RALC Act Schedule 6 provisions are taken into account, the case is unarguable, and the two suggested reasons that have been advanced by our friends responsively to our submissions, neither of them can stand. For that reason the appropriate course is for your Honour to dismiss the matter with costs. Your Honour, unless you have any questions, those are our submissions.

HER HONOUR: Could you – just before you do sit down, now that I have section 78(3) - - -

MR DONAGHUE: Of course, your Honour, yes.

HER HONOUR: - - - would you mind just refreshing my memory as to how that operates?

MR DONAGHUE: Not at all, your Honour. So 78(1) is the provision that would be applicable here. So if your Honour looks at (b)(i):

one of the child’s parents holds a visa –

that is, the father here held the bridging visa, and –

the other parent is . . . included in that visa –

not our case –

or does not hold a visa –

So that is our - - -

HER HONOUR: Yes.

MR DONAGHUE: So:

the child is taken to have been granted, at the time of the birth –

a bridging visa. Then one looks at (3) which indicates:

Subdivisions AA, AB, AC . . . AE and AH do not apply in relation to visas granted under this section.

So that is the bridging visa granted by force of 78(1). Subdivision AA includes section 46A, amongst many other provisions. So that is why we say 46A would not inhibit a grant under 78, and 78, just as a schematic matter, does not support the idea that there is something anomalous about UMA status following the father rather than both parents.

HER HONOUR: Yes, thank you, I understand.

MR DONAGHUE: If the Court pleases.

HER HONOUR: Yes.

MR MAC GIOLLA RI: Other than clarify, your Honour, we are now proceeding primarily on the supplementary outline that was filed recently.

HER HONOUR: Yes, I understand that. I think I understand the scheme of the Act and the parties are not at issue, as I apprehended, about how it operates. The question is simply whether it applies.

MR MAC GIOLLA RI: Yes, that is right. There is only one aspect perhaps that was outlined by my learned friend, and he talked about the “fourth fact” at the outset of his submissions, and that was that at the time the application was lodged, the plaintiffs had a visa and that that was in some way relevant. It was not relevant, was all I would say about that. It does not really need to trouble us in this argument but - - -

HER HONOUR: You are referring to the argument about section 78 and how it operates in a way which is anomalous, is that what you are - - -

MR MAC GIOLLA RI: No, just at the outset, four facts upon which the argument was going to be held - - -

HER HONOUR: I see, yes.

MR MAC GIOLLA RI: - - - were set out, and the fourth fact was that at the time the application was made the plaintiffs had bridging visas, or were deemed to have bridging visas. That would not have affected their ability to apply one way or the other under the old regime.

HER HONOUR: Yes, I follow.

MR MAC GIOLLA RI: That is the new point. In terms of the issue before your Honour, it is essentially whether the matter can be dismissed or whether it needs to be remitted to be properly litigated. What my feelings about it obviously is the merits, and that is really what my learned friend has been discussing to this point. Also the form in which these matters should or could really be fully litigated also plays into that, in my submission.

HER HONOUR: Well, it is really whether or not you have an arguable case as a matter of law and also insofar as you are relying upon there being a fact upon which you rely, such as when the matter was decided, whether you have sufficient evidence for it to be said to be an arguable case.

MR MAC GIOLLA RI: Yes. The point in relation to that is that the affidavit – and I should indicate that I rely on the affidavit of Mr Nguyen and the affidavit of Mr Fisher.

HER HONOUR: Yes.

MR DONAGHUE: Your Honour, I do object to the affidavit of Mr Fisher. I do not want to waste the Court’s time on it at any length, but essentially we say, well, it is argumentative and it is proving things or seeking to prove things through a newspaper article about someone who is not even the plaintiff. It just cannot be relevant to anything - - -

HER HONOUR: All right. I will not need to rule upon it. I will take it into account, Mr Donaghue.

MR MAC GIOLLA RI: Thank you. Turning to perhaps the last submissions made by my learned friend first, and that is the issue in relation to the date, not so much the significance of it, just to the evidence in relation to it, all Ms Russack says is “I have looked at some screenshots and those screenshots tell me something”. It does not say which person had their hands on something at a time, whether somebody actually made a decision on another date. It just says the screenshots tell me something, and it does not, in my submission, establish that a decision was not made on a particular date, even in its terms.

HER HONOUR: However, the letter that is exhibited allows an inference to be drawn that the decision was made when the letter was written.

MR MAC GIOLLA RI: Absolutely, absolutely.

HER HONOUR: That is the evidence that you have to contend with. As against that, the plaintiffs’ father merely says that a caseworker, who of course is not an officer of the Department, said something to him and as a result of that he believed there was a decision made.

MR MAC GIOLLA RI: I would be surprised if a caseworker was not an officer of the Department but that - - -

HER HONOUR: Well, we will hear about that.

MR DONAGHUE: I think they are, your Honour.

HER HONOUR: They are, all right. Thank you for clarifying that.

MR MAC GIOLLA RI: So an officer of the Department has told them – and it is not a trivial matter.

HER HONOUR: No.

MR MAC GIOLLA RI: Your children have applied for protection. That has been refused. It has been refused under 46A. It was quite specific.

HER HONOUR: Well, quite specific via a telephone interpreter.

MR MAC GIOLLA RI: Yes.

HER HONOUR: I mean, all sorts of misunderstandings can occur in translation.

MR MAC GIOLLA RI: Yes.

HER HONOUR: She could just as easily have been saying that there is legislation coming and the decision is not going to go your way. It is just very hard to understand exactly what was said.

MR MAC GIOLLA RI: I would agree entirely, but in circumstances where the Department have had that raised for them and where the answer is simply to rely on screenshots, it really, in my submission, just screams out, well, let us find out what happened. Let us remit this and let us have it argued properly. Let subpoenas issues, let witnesses be called, and I may have misunderstood but there does not appear to be the type of - - -

HER HONOUR: You are saying have a hearing because the person who made the decision has not put an affidavit on to say when they made the decision, or to rebut the suggestion it was other than on the day of the letter?

MR MAC GIOLLA RI: Yes. Sorry, I do not want to be too unequivocal about it. All I can say is that the material suggests there is a controversy as to when this decision was made. It may be that Mr Nguyen got the wrong end of the stick, but there is evidence there that it was made at an earlier time. An officer of the Department has told him something, told him that a decision had been made. Ms Russack says something different. There is a controversy there and this is not a proper forum to litigate that controversy.

Then if I could in a very blanket way deal with the submission that followed that, that even if there is an argument, or even if we could establish that a certain thing occurred on an earlier date, that the decision occurred on an earlier date, that it does not matter. The decision could be quashed, but the consequences that would flow from that would be that we would be back in the same position applying with the same difficulties.

That really is not the point in relation to this application because that is essentially a concession that we would succeed in this application. Whether it is in the plaintiff’s interest to pursue that application is a separate matter - - -

HER HONOUR: But if it had not been finally determined, if the decision had been made earlier and it was invalid, as it would have been, then section 5AA(1A) applies, does it not?

MR MAC GIOLLA RI: Perhaps to the next decision.

HER HONOUR: Yes, that is right.

MR MAC GIOLLA RI: But to the next decision and not to this decision. So the Court’s answer today would be – the arguments today from the Minister is they may succeed in this application but they should not bother.

HER HONOUR: Well, because section 5AA would apply, which means that it is doomed to failure, does it not?

MR MAC GIOLLA RI: A subsequent application but not this application for summons. We are not really at cross-purposes, just placing emphasis in a different place. The consequences may well be the same, but as a matter of law and procedure there is a concession that, that being the case, we would be successful, but ultimately might not do the plaintiffs any good, but that is a separate question for them in terms of whether they pursue it.

HER HONOUR: Do you mean successful in the application for protection visas?

MR MAC GIOLLA RI: No, successful in the application to have the decision set aside.

HER HONOUR: Yes, I see.

MR MAC GIOLLA RI: If I could perhaps just focus on one other issue, so we are dealing - the merits are significant. The forum for the proper exposition of these issues is also, in my submission, a relevant matter. The third issue might be the importance of the issue that is to be decided. That would flow with the merits or sort of sit with the merits in the sense that even if there was a possibility, albeit a slim possibility, if a matter was of particular importance that opportunity should not – the plaintiffs should not be deprived of that opportunity.

It takes me to the general submission made by my learned friend that no consequences flow from the designation of being an unauthorised maritime arrival for someone in a particular circumstance, but that was in the context of this argument about a 457 visa versus a person who was an unauthorised maritime arrival.

As recently as last year, if I could perhaps – moving outside the scheme of the Act for a moment, as recently as last year the Minister litigated the issue as to whether the mere fact that someone was an unauthorised maritime arrival means that granting them a visa could be not in Australia’s interests. This Court dealt with that, but the consequences within the Act and more generally of being an unauthorised maritime arrival are huge.

HER HONOUR: Are extremely serious, yes, I appreciate that.

MR MAC GIOLLA RI: Turning to the argument raised in relation to the decision in Sherzad, the important word at paragraph [12], if I could take your Honour to that, is four lines down -“necessarily”. So I would of course concede that it does not necessarily arise – it is not necessarily the case that section 23 will always operate to mean that both must – both parents or in any particular situation, and this point really also arises in relation to the extract in the Citizenship Act that was handed up.

Again, the context – the legislative context in which that section appears will inform the interpretation of that. But I would also argue strongly that it is also not necessarily the case that it must always exclude both just because we have one decision here where the overall operation of the scheme that was being considered by the Federal Court suggested that one particular version of the plural. So the question is, is it each or both, in our section, as in each parent or both parents are unauthorised maritime arrivals? Both, in my submission - - -

HER HONOUR: But what is put against you is that section 23 does not give a warrant to substitute the plural for the singular and to exclude the singular. It simply says that the two can co-exist.

MR MAC GIOLLA RI: Absolutely, and there would be work for the singular to do in the definition suggested by the plaintiffs as well in the sense that if one parent was an unauthorised maritime arrival that is sufficient. It does not require that a parent who, for example, was not in the country or was not subject to an Australian visa regime or did not arrive so we did not know who the parent was, for example. So it is not to say – I understand the point and I agree generally speaking that – I would submit that both possibilities are open and it is a question of interpretation to decide whether “both” is the plural that is involved or “either”.

The strong inference from section 78 is that it would be both. The reason for that has been very fairly put before the Court by my learned friend, and that is that visas – of course it is visas that we are talking about and a designation as an unauthorised maritime arrival is different to that, but visas are traced through both parents, and if visas are traced through both parents, why not the status in relation to being an unauthorised maritime arrival or otherwise.

I would not agree with my learned friend in relation to – this goes back to the importance of the designation of being an unauthorised maritime arrival. For example, we have a regime that certain people in PNG and the people in PNG, having arrived at a certain point in time, now attract a designation either of – if they had been here, transitory people or unauthorised maritime arrivals, depending on where they have landed, they marry a person from Papua New Guinea and they will trace forever during their life the status of being an unauthorised maritime arrival from the parent who was an unauthorised maritime arrival. So they may be a citizen of PNG but under the Migration Act because one parent was an unauthorised maritime arrival, they will carry that in their immigration genes forever in terms of making - - -

HER HONOUR: Well, I do not know what the migration law of PNG says - - -

MR MAC GIOLLA RI: Well, no, if they ever apply for a visa to Australia.

HER HONOUR: I see.

MR MAC GIOLLA RI: But they cannot apply for any visa unless the Minister permits them, because section 46A is not only in relation to protection visas, it is in relation to any visa. So they might come here as a student and somebody discovers that their father was an unauthorised maritime arrival, that is them done. Well, the regime under 46A applies.

HER HONOUR: Well, it might be a harsh consequence, but it does not suggest that there is any kind of – that the statutory scheme is uncertain. It is fairly clear what its purpose is.

MR MAC GIOLLA RI: It is very clear what its purpose is, but I would submit that there is a real issue because of how section 78 operates whether the new definition in 5AA(1A) is in relation to a single parent or both parents, because the Act is set up – on this issue the Act is set up and (9)(b) confirmed that, that the Act is set up in a way that allows children to obtain their immigration status from both parents, not just one, and as my learned friend said, to take the advantages of each parent’s migration status rather than just one.

Equally, a designation of being an unauthorised maritime arrival could have the effect of imposing on – sorry, that designation, if it only flows from one parent, could have the effect of having consequences for who a child can be with at any particular time. If the child’s status is designated only by one parent, and that lands them with an unauthorised maritime arrival label forever, that could preclude them from enjoying whatever benefits the other parent has.

So if the parent can move off a 457 visa onto a permanent visa the child is not entitled to follow as they might otherwise be because section 46 continues to operate. That would, in my submission, introduce issues in terms of the rights of child and whether the Act should be interpreted, as I say, in a way that gives meaning to international conventions. That is a matter that I have not raised in my outline, but it really just flows from the fact that it would be unusual if an Act that uses both parents, for good reason, to confer benefits on a child would move away from that scheme for one particular reason.

Moving on to deal with the issue of whether the matter was finally determined, and perhaps leaving the evidentiary situation to one side, my point in relation to that being that this is not the forum in which to be issuing subpoenas, cross-examining witnesses and resolving a reasonably

major controversy of that kind, but to deal with some of the matters raised against me that the application is to challenge a decision made on 12 February 2015, it is, but perhaps on the basis that the decision was made at an earlier time. That does not necessarily mean that that is the decision - the Minister is saying the decision was made. That is not to say that then that is the only date we have from the Minister, or that is not to say it was not made at an earlier time.

In terms of the plaintiffs’ averment that when he sent his freedom of information application he found nothing one way or the other in relation to his decision that would include the fact that he was not even given the screenshots. That averment is a matter for your Honour how your Honour understands it, but in my submission it goes more to the paucity of the response than it does to exclude the possibility that there was no material there to support his contention.

In my submission, it is not a given that a finding that a decision was made at an earlier time and that a decision was finally made would preclude a court from granting an order that the Minister must consider the application. The bar in 46A is essentially in the nature of a - - -

HER HONOUR: Well, there would have to be an argument about whether the Minister could be directed to consider whether to raise the bar. That would be your threshold question.

MR MAC GIOLLA RI: Yes, your Honour.

HER HONOUR: What would be the basis for that?

MR MAC GIOLLA RI: Well, that there was no bar to raise at the time the matter was finally determined. So it would not be an order that the Minister raise the bar, it would be on the basis that at the time the decision was made – was made and finally determined, there was no bar to raise. So, ultimately, then an important point of statutory construction which, despite my learned friend’s submissions, as I said, the application of section 23 of the Acts Interpretation Act does not necessarily mean it is one parent or the other.

It depends on the overall statutory scheme, and in this case there is ample reason to argue that the statutory scheme intends that the consequences would flow only if both parents had a particular status. There are factual matters to be decided and this is not the forum in which to decide them. Those are my submissions, unless there is anything in particular.

HER HONOUR: Yes, thank you. Yes, Mr Donaghue.

MR DONAGHUE: I will be fairly brief, your Honour. Just in relation to the question of the consequences of being an unauthorised maritime arrival, when I said it did not matter I was referring to the specific example of the 457 visa holder that my friend was referring to. Obviously that status is an important status under the Act, but it is principally important by reason of 46A, and if your Honour could turn to 46A – I know it is familiar to your Honour – but it has some limbs in addition to being an unauthorised maritime arrival.

Many of the submissions that you have just heard from my friend assert consequences for being an unauthorised maritime arrival that do not follow under 46A because for that status to matter, for the bar under 46A(1) to apply, you have to be not only an unauthorised maritime arrival but also in Australia and an unlawful non-citizen. So status as an unauthorised maritime arrival is not a bar to an offshore application to come to Australia as a student, and if you are an unauthorised maritime arrival where a parent is a holder of a substantive visa, not one of those few categories listed in item 13, 46A likewise does not prevent you from applying for any other category of visa because you are not an unlawful non-citizen.

So the status undoubtedly has potential legal consequences but only if those additional elements are met, and so the “immigration genes” submission my friend made about PNG and not being able to come as a student, none of those consequences would follow under the Act. But ultimately, in any event, your Honour, they are policy submissions about why maybe Parliament should not have specified that the status of a UMA follows on from a parent being a UMA, but that is what Parliament, in my submission, plainly said in the provision that it enacted. Our friend has not, in my submission, really grappled with the fact that there is - - -

HER HONOUR: You say that 5AA is directed to either one person - - -

MR DONAGHUE: Or both.

HER HONOUR: - - - or both persons being unauthorised maritime arrivals and having children in Australia is directed to the - - -

MR DONAGHUE: Indeed, and that if Parliament - - -

HER HONOUR: It is directed to the very situation that the plaintiffs are in.

MR DONAGHUE: Exactly, and if Parliament wanted to say both, it could not achieve it by saying “a” because 23 allows you to include – but if you really need there to be both you have to say so because 23(a) cannot generate that route. Direct reversal to say singular does not include

singular, it is not capable of having that operation, in my submission. So, while there might be a question of interpretation as to how in some cases one has to look, as the Full Court recognised, about whether there is a contrary intention to exclude, that is not a warrant for reversing the language that is being used, which is how our friends are seeking to proceed.

The only other matter I need to raise is that, as I understood the submissions about item 12, our friend says this is not the right forum to have a factual trial, and we do not disagree there. But what your Honour is being asked to do is to remit this matter so that there can be a factual trial, which on the material before your Honour there is a good reason to think that the Minister will win, but in circumstances where even if the Minister loses you have heard no argument that would explain why 5AA(1A) would not then have the consequence that the plaintiff must fail.

That, we submit, is a classic futility situation because there would be remitter with further attendant costs and delay for no purpose, and nothing has been put to you that would explain how the provision would do anything other than mandate the future refusal of these protection visa applications. So in those circumstances, your Honour, we submit that it would be futile for the proceedings to be remitted and it should be dismissed. If the Court pleases.

HER HONOUR: Thank you. I propose to adjourn for a short period and return and pronounce orders with reasons, if the parties wish to wait.

MR MAC GIOLLA RI: Could I just make one observation in relation to my learned friend’s submissions? In terms of reasons why remitter would not be futile, your Honour might take into account the speed with which legislation moves in this area.

HER HONOUR: Yes, it usually does not move in favour of applicants, though.

MR MAC GIOLLA RI: Not often perhaps, but perhaps in – I have made my point. Thank you, your Honour.

HER HONOUR: Yes, thank you. I will adjourn for a short period.

AT 11.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

HER HONOUR: Application is brought on behalf of the plaintiffs for an order that the Minister for Immigration and Border Protection show cause why there should not issue: a writ of certiorari quashing the Minister’s decision of 12 February 2015 that the plaintiffs’ applications for protection visas are invalid; a declaration that section 46A of the Migration Act 1958 (Cth) does not apply to the plaintiffs; and consequential orders.

The plaintiffs are infants born in Australia on 16 August 2013. The plaintiffs’ father was an offshore entry person within the meaning of s 5(1) of the Act, because he entered Australia by sea at Christmas Island. The plaintiffs’ mother entered Australia on the mainland and was not an offshore entry person. The term “offshore entry person” was later replaced with the term “unauthorised maritime arrival” or “UMA”. The plaintiffs’ father was and the plaintiffs’ mother was not, therefore, a UMA.

Sections 10 and 78 have the effect, respectively, that the plaintiffs are taken to have entered Australia at the time of their birth, and to have been granted the same kind of visas held by their parents. They are, therefore, to be taken as holders of a bridging visa on the same terms and conditions as the visa granted to their father. The plaintiffs were, therefore, lawful non-citizens at birth and were not then UMAs.

On 1 September 2014, applications made on behalf of the plaintiffs for protection visas were received by the Minister’s Department. The plaintiffs’ litigation guardian, their father, was notified on 12 February 2015 that the applications were invalid because of section 46A of the Act. Section 46A(1) creates a bar to a person lodging a valid visa application if a person is both a UMA and an unlawful non-citizen.

On its face, section 46A would not appear to apply to the plaintiffs. However, section 5AA(1A) was subsequently inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“the RALC Act”). It provides that a person is a UMA if:

“(a) the person is born in the migration zone; and

(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and

(c) the person is not an Australian citizen at the time of birth.”

It will be recalled that the plaintiffs’ father is a UMA. In the notes to section 5AA(1A), which form part of the Act, it is said that a parent may be a UMA even if they hold a visa and that the subsection applies where a person is taken, under s 78, to have been granted a visa on birth. Section 5AA(1A) is taken to have applied to an application for a visa made before or after the commencement day, which is 16 December 2014, but not to an application which had been finally determined before the commencement day (see the RALC Act, Schedule 6, item 11(f) and item 12. If section 5AA(1A) applies, the plaintiffs are UMAs for the purposes of section 46A.

Section 46A also provides that its bar applies to unlawful non-citizens, which the plaintiffs were not at birth. However, the RALC Act also provides, by item 13(2)(a) of Schedule 6, that section 46A(1) is taken to apply to certain persons despite the fact that they were lawful non-citizens if they held that status only by reason of the fact that they held a bridging visa. Such is the case with the plaintiffs.

The effect of these provisions is not disputed. If they apply, the plaintiffs’ applications for a protection visa are invalid. It is submitted for the plaintiffs that they do not apply for two reasons. The first is that section 23 of the Acts Interpretation Act 1901 (Cth) has the effect that the reference to “a parent” in section 5AA(1A) should be read as “both parents”. The Minister does not deny that section 23 applies, but submits that it applies so as to permit the plural as well as the singular but not so as to exclude the singular, as the plaintiffs contend. The Minister’s submission is plainly correct.

The plaintiffs’ submission that the scheme of the Act is otherwise directed to a child’s status following the position of both parents does not affect the construction of section 5AA(1A) which is clearly expressed in terms that address the situation of a child born in Australia to a person who is a UMA. It is addressed to the very position in which the plaintiffs find themselves.

The plaintiffs’ submission concerning the effects that the conferral of this status has on a child does not identify an anomaly in the statutory scheme which assists the construction for which the plaintiffs contend. They merely reflect policy decisions inherent in the legislation.

The second matter raised is that it is possible that the plaintiffs’ application was finally determined before the commencement of section 5AA(1A) so that it does not apply. On the basis that there is an arguable case that this may be so, the plaintiffs contend that their application to show cause should not be dismissed and proceed to trial following remitter to the Federal Circuit Court of Australia.

The evidence relied upon is that of the father and the Director of the Protection Visa Procedures section of the Onshore Protection Branch of the Commonwealth Department of Immigration and Border Protection. As to the latter, it is said that her affidavit as to the procedural history of the matter does not expressly reject the possibility that a decision on the plaintiffs’ applications was not made prior to 16 December 2014. The Director in fact says “The plaintiffs’ applications for protection visas were found to be invalid on 12 February 2015.” This is consistent with the terms of the letter of the same date which notified the plaintiffs’ father of that decision. Without more, the inference to be drawn from the letter, from the records appended to the Director’s affidavit and the Director’s reading of those records is clearly enough that the decision was made on the day that the letter of notification was sent. There is no other record of any decision at an earlier point.

The plaintiffs’ father’s evidence is to the effect that in a conversation which was had, via a telephone interpreter, with the plaintiffs’ mother’s caseworker, he was told something about “section 46A” being the reason that the applications had been refused. In a telephone conversation in October 2014, preceding the conversation just referred to, the caseworker had told him that the applications had been refused at that time. He did not hear anything further from the Department and, in the belief that the decisions were made, he submitted freedom of information requests about the decision on 5 February 2015.

This evidence certainly discloses that the plaintiffs’ father may truly believe that a decision had been made at an earlier point. It is not, however, evidence which is cogent. The plaintiffs submit that this evidence is sufficient, in effect, to create a controversy which should be resolved by litigation. In this regard, the fact that the decision-maker has not given evidence might be thought to be a point in their favour.

It does not, however, seem to me that there is a sufficient evidentiary basis to warrant a trial on this matter. In any event, there would be no utility in that course. If the plaintiffs are correct and a decision holding their applications to be invalid was made prior to the commencement date of s 5AA(1A), the decision would itself be invalid and liable to be set aside. In that event, their matter would not be finally determined as yet and therefore not exempt from the provisions of 5AA(1A). All that could be achieved by the plaintiffs is the setting aside of that earlier decision in order for the same decision to be made in light of section 5AA(1A).

The final point raised is that it is possible that the plaintiffs’ applications could have been deliberately delayed so that the new provisions would apply to them. There is no evidence to support such an allegation. It cannot even be inferred that there was any delay in processing the plaintiffs’ applications. The submissions for the plaintiffs frankly acknowledge that there is presently no evidence to support what would be a serious allegation of misconduct, for the submission is that, premised upon the fact that if the evidence was able to show a decision to be delayed, the ultimate decision is invalid.

It is not necessary to determine whether that legal conclusion would follow. There is no sufficient basis for the matter to proceed to trial. Section 46A applies to the plaintiffs and their applications for protection visas were invalid. The application to show cause is dismissed with costs.

MR DONAGHUE: If the Court pleases.

HER HONOUR: Yes, thank you for your appearances. The Court will now adjourn.

AT 11.44 AM THE MATTER WAS CONCLUDED