ENT19 v Minister for Home Affairs & Anor [2023] HCATrans 26 (14 March 2023)

Last Updated: 14 March 2023

[2023] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S102 of 2022

B e t w e e n -

ENT19

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 MARCH 2023, AT 2.16 PM

(Continued from 8/12/2022)

Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MS L.G. DE FERRARI, SC, MR J.D. DONNELLY, and MS E.A.M. BRUMBY for the plaintiff. (instructed by Zarifi Lawyers)

MR S.B. LLOYD, SC: May it please the Court, I appear with MS A.M. HAMMOND and MR J.G. WHERRETT for the defendants. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Walker. Do we take it from your outline of argument that there is some aspects of the argument previously advanced that are no longer pursued?

MR WALKER: I think the answer to that – short answer, that is – yes. And I should also add, and some decidedly downgraded; that is, in a fallback sequence.

KIEFEL CJ: So we can take your outline as definitive of the outline of argument?

MR WALKER: Yes, although my friend and I have had a discussion that it does not alter so much the outline as to substantive argument, but that certainly affects it as to important contingent questions of relief – contingent, that is, upon any success or the kind of success. We need – that is, both of us need – to draw to your attentions, if I may hand it up, the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023, made on 9 February, with the commencement date of 14 February this year.

I am not going to go to any detail into it immediately, or maybe at all, but I need to draw to your attention that, in the event that there was any revisiting of the application for a safe haven enterprise visa in this case, consideration would require to be given – especially in response to our claim which as two-part advances what we will call the peremptory mandamus claim for the issue of a safe haven enterprise visa; the effect on that of the provisions – if I can take you directly to the operative provision, clause 2.08G – has the effect that – and I paraphrase – the application would be taken to be an application for a resolution of status class CD visa. These are not mere changes of nomenclature, it is the difference between a temporary visa and a permanent visa, as it happens.

If it matters at the moment, your Honours will find two pages over in the table with items to describe how this applies to various classes. Item 4, which is out for us – and here is the element of a puzzle about it, which I will not dwell on now, if at all. Column 2, which describes:

When this regulation starts to apply –

remembering it commenced on 14 February last – says:

When the Minister makes a record, after the occurrence of the event mentioned in paragraph (d) –

and your eyes will pick up that there are there references to, among other things, quashing a decision:

that the Minister is satisfied –

et cetera, et cetera. So that it looks forward as to – supposedly, when this regulation starts to apply, it looks forward to a time which obviously has not yet occurred, if it were ever to occur.

GORDON J: I am sorry to be slow, Mr Walker, could you explain to me what the consequence of it is if it applies?

MR WALKER: The consequence of it is that the application for a ‑ ‑ ‑

GORDON J: SHEV.

MR WALKER: ‑ ‑ ‑ SHEV is to be treated instead as an application for one of these permanent humanitarian visas and with an obvious difference, were my client to enjoy that, to his benefit, so that a peremptory ‑ ‑ ‑

GORDON J: Is this the one that was publicly announced to convert people who had been on SHEVs for a while to be able to be given a permanent ‑ ‑ ‑

MR WALKER: Yes.

GORDON J: I see.

MR WALKER: And your Honours know, of course, that “permanent” just means indefinite.

GORDON J: Yes.

MR WALKER: It does not mean forever.

GORDON J: Thank you.

GAGELER J: Are the criteria different, Mr Walker?

MR WALKER: They are not greatly different, but they are differently expressed, and it is for those reasons that I will not be dwelling on the detail of it, because – and my friend obviously has the primary conduct of that matter, but I am primarily responsible for the claim we make for relief. An alternative that obviously emerges to the so-called peremptory mandamus for a SHEV, to use the jargon, is to adapt to the advent of this regulation set aside a decision with a more humble mandamus to reconsider.

GORDON J: Well, it is not reconsidered then, is it? It is a mandamus to consider these.

MR WALKER: In light of what this law requires, which is that the pre‑existing application is, to use the language, to be:

taken to be –

and then one of those intellectual contortions:

and always to have been –

that is, in a past where none of this existed:

a valid application –

et cetera, et cetera.

GORDON J: Can I ask one more question about these other extrinsic materials attached to these?

MR WALKER: Yes. I am not sure to what extent one can use the word extrinsic any more for these materials, but there is an explanatory statement ‑ ‑ ‑

GORDON J: No, I apologise for using that language, but was there an explanatory statement?

MR WALKER: I am sorry, your Honours have not got it. I have – could I hand up – I am much obliged to my friend and his instructors. This is the explanatory memorandum with everything that might be called extrinsic and I think ‑ ‑ ‑

STEWARD J: Mr Walker, from the table, are you telling us we do not know when this regulation will commence, or has commenced? It is in law, I know, but ‑ ‑ ‑

MR WALKER: It has a commencement date of 14 February, but it does not – to use its language – start to apply ‑ ‑ ‑

STEWARD J: Yes.

MR WALKER: ‑ ‑ ‑ until sometime in a possible future.

STEWARD J: All right.

MR WALKER: I am sorry, your Honour, I cannot ‑ ‑ ‑

GORDON J: Is that because you need an order of the Court? In other words, you need one of the criterion D?

MR WALKER: There actually needs to be a decision ‑ ‑ ‑

GORDON J: Yes.

MR WALKER: ‑ ‑ ‑ which includes a state of satisfaction which has been recorded or which – I think, implicitly – maybe, explicitly – is for the purposes of consideration of an application. I cannot, on my feet, solve the problem as to what it means to say is “taken to be” and “always to have been” such an application but that does not apply until after, in effect, it has been decided. I think it means we are being required to treat this as a system which Ministers must now administer by regarding such an application against the requirements for the new visa.

I need to correct an answer to Justice Gageler. There are no contradictions – as we see it – between what is required for a SHEV and what might be considered by a Minister with respect to these new visas. But I think, in particular, that the matter of interest there is – so far as we understand it – there is not an express national interest criterion – positive or negative.

Now, that does not really matter for our argument because one way or the other we have to address that question in relation to the decision at hand. None of what I have just raised about the new regulation matters unless, of course, we enjoy some measure of success, which involves a quashing.

Your Honours, the focus of the argument, as you know, and as we note in proposition 1, is on the nature of the regulation of the decision‑making power with respect to an application for a SHEV of clause 790.227 of the regulations. Later I will take you to the record of the decision‑making which, in more detail and with respect to our client particularly, invokes that provision.

In opening and in developing the point in propositions 1 and 2 we submit, as those facts will show in due course, that this is a decision which was made explicitly on the basis of 790.227 and the difference between our submissions in‑chief and reply in writing in this Court record the tide going out on this matter. That clause was put into the regulation directly by statute. It was not promulgated as in the ordinary sense, subordinate legislation by delegation.

KIEFEL CJ: Is that something of which the Court was not aware on the last occasion that the matter was before it?

MR WALKER: Absolutely. That is why I say – and directing it to us, the tidemark in relation to that question can be seen in the adjustment we make in our reply. I wish it had not been so, but there it is.

Now, your Honours, that brings in its train certain arguments that we will come to in due course. They may not, it turns out, be critical but, on any view of it, as your Honours have seen, it has posed for us arguments which, advanced as they now are in the combination of the written submissions in‑chief as affected by the recasting in reply, it does involve a distinct downgrading of what I will call the ordinary ultra vires argument.

Or, to put it another way, this can no longer be a case with respect to 790.227 itself put simply as the promulgation of a purported regulation by the Executive beyond the power to do so, given in the constating statute. There are other arguments, to which I will come in turn, as your Honours have seen in our outline, that seek to deal with the consequences for our case of that.

Could I, however, start by taking you to the text of that part of the regulation, and you will see that in the joint book of authorities at page 124, this part of the regulation, which relates to subclass 790 safe haven enterprise, contains in the portion of it, designated 790.22, criteria to be satisfied at the time of decision, 790.227, which is:

The Minister is satisfied that the grant of the visa is in the national interest.

That is what might be called the positive version of national interest; that to grant is in the national interest. As your Honours know, and is, we think, not in contest to any degree, the record of the decision, however else one may characterise it, shows clearly that the Minister purportedly was not so satisfied and proceeded, therefore, to refuse the visa; that is, to decide not to grant. And I will come back very shortly to statutory provisions at the heart of our argument concerning that.

There is between the parties, obviously, a dispute, to which I am coming immediately, as to whether that is a provision which has the effect of altering – to use a neutral expression – the legal effect of the provisions, in particular, of sections 36 and 65 of the Act. In particular, it is our argument that whether inserted by an Act or by the usual Executive delegation, this provision in the regulation, for a positive satisfaction, is one which cannot be understood to cut across, either by contradicting or by rendering otiose – cancelling out – the provisions which have been enacted by the combination of, in particular, section 36 and 65, which we do characterise as exhaustively prescribing the state of affairs – if you like, satisfaction of criteria – that require the grant of such a visa.

GLEESON J: Is there some underlying assumption that the national interest, or the Minister would be satisfied as to the national interest if there is compliance with positive criterion for a visa and an absence of failure of the negative criteria?

MR WALKER: That is certainly a footing – in very general terms, of course – as your Honour intends it – that is certainly a footing for the way in which we argue. Perhaps I could elaborate a bit in this fashion. We submit that the effect of the provisions I have referred to describes the state of affairs which, if true, produces the grant of such a visa, and that certainly involves both positive and negative states of satisfaction. The subject matter of some of those matters to which I am about to come are, obviously, of their nature, well within any concept of what might reasonably be available to a ministerial decision‑maker concerning the national interest – even accepting the caution with which, obviously, judges would venture into anything like categorical or definitive statements of that – an essentially political matter, understandably, committed either by law or in practice to officers of the Commonwealth at the rank of Minister.

Against that understanding of the nature of the national interest which comprehends matters that probably cannot be catalogued – and is certainly malleable according to electoral politics, according to global conditions and according to circumstances from time to time – against that, one sees the more concrete and specified matters – in particular, relating to the criminal record of an applicant – contained in the provisions to which we will come. That specificity is all in vain if 790.227 would permit a Minister who, for example – flying in the face of our history – decided that convicts should not be permitted to become part of our community. One could, obviously, regard that, from time to time as being in the national interest. The United Kingdom, obviously, thought so at one stage.

That is a mismatch in terms of what I will call a list of criteria or prerequisites for the grant, or compulsory grant, of a visa. It is for those reasons, that we submit – and in place of an ultra vires argument simpliciter – we submit that the proper reading of 790.227 leaves it as a positive criterion to be satisfied in the event of something other than that which has been addressed and dealt with definitively by the statutory provisions and that that is in accordance with what can be called, truly, the enacted subordinate role of 790.227.

How do I make that good, bearing in mind it was made as law by a statute, and that is because plainly a choice was made – this is not random or arbitrary – not to amend, say, 36 and 65. This is not an amendment of the Act at all, it is the insertion of something into a regulation and, in our submission, as I will come to with respect to the regulation‑making powers – not used in this case but giving a notion of the role of the regulations as a whole – when one considers that, then it would be, in our submission, a wrong understanding of the intention of the Parliament expressed at different times but to be understood now in a composite fashion that something as broad and flexible as ministerial satisfaction as to national interests dispenses with or removes the need to consider, let alone be governed by, the provisions to which I now come.

Now, could I take your Honours, first of all, to 35A by way of preliminary. Your Honours obviously know all this, but the basis is that under – that is 82 of the book – that there are under section 35A protection visas, so‑called, including under subsection (3) “temporary protection visas”, and including within that class subsection (3A) “safe haven enterprise visas”, the ones in question in this case. We then see under subsection (6) of section 35A that there are criteria for classes of protection visas, of which a SHEV is one, and they are those set out in section 36, and then what is said to be:

any other relevant criteria –

I lean on the word “any” because ordinarily – and I stress ordinarily – that might suggest there does not have to be others, there is not bound to be others, there may be others:

prescribed by regulation for the purposes of section 31.

To which I will come back in due course. It follows, of course, that unless there is a strained reading of a kind that might not be impossible but which seems too hard in this case, 790.227 does not seem to be within that description, whether deliberately or not, in the sense that prescription by regulation for the purposes of section 31 invokes that act of government which is the making of delegated legislation by a delegation.

Now, there is, obviously, another way of reading that, and that is that “prescribed by regulation” refers to anything in the regulation, including that which is put in it directly – that is, with no delegation – by the Parliament.

EDELMAN J: But, Mr Walker, even if it had the first meaning – the narrower meaning of regulation – the insertion by Parliament of a provision into the regulation would impliedly amend that, would it not?

MR WALKER: Your Honour, I have to accept that it is a possibility. There is a to‑and‑fro of what might be called forensic advantage, disadvantage between these parties concerning how to characterise what appears in the regulation but is a clause inserted by an Act.

Your Honours have already heard me – and you have read us argue that if it is to be regarded as having the character of being in the regulation – and that is the character I am giving it – it does not involve delegated, just as in being in the regulation – by a legislative choice that refrained from amending 36 and 65 – to which I am coming – then it has, in our submission, a subordinate status – not less binding in law, far from it, but an indication that in reconciling provisions that might otherwise present difficulties of consistency one with the other – such as the treatment, for example, of criminal record – then, that which is in a regulation rather than in the Act, and that which is in particular not in a provision that on its face sets out that which is sufficient for the grant of a visa, then, in our submission, the reading down – if one likes – but the reading of something as general as satisfaction of being in the national interest ought to be understood as extending to those matters properly – by which I mean reasonably – within such a Ministerial view other than those matters regulated directly by Parliament as to the way in which they ought to be taken into account for considering the application for this kind of a visa, such as the matters about criminality to which I am about to come.

STEWARD J: Does the subordinate role that it plays arising, as you say, from Parliament’s choice to enact this as a regulation really mean that, for construction purposes, 227 cannot have a role that is inconsistent with the primary Act?

MR WALKER: It is very tempting for me to say simply yes, your Honour, and that is a strand in my argument.

STEWARD J: But it must be so if it is subordinate to the Act.

MR WALKER: Yes.

STEWARD J: If that is what Parliament intended – the regulations to have that role.

MR WALKER: The Court is obviously used to what I might call the palimpsest form of legislation, including delegated legislation, and so, from time to time, one has to stand back, take stock of what are we left with now, bearing in mind that it is like the proverbial patchwork quilt: it has been remade, remade, remade – so what have we now got? That will mean that from time to time there will need to be understood what has been the effect of a later enactment on what was formerly understood to be the meaning of a provision which linguistically has not been altered. That is a familiar and not at all remarkable task.

As part of that, we submit – as a matter of interpretation or construction, as Justice Steward has asked me to address, then of course in order to understand the composite, contemporary meaning of the assemblage of words about the topic, one will quite often ask, well, what are the – as it were – primary or governing provisions here, and what are matters that yield in order to avoid – and here is how I use it as a strand – a species of inconsistency? Or, to put it another way, if one part of the wording would – as in this case – produce an exhaustive prescription of what is sufficient for the grant of a visa and – I will call them – new wording, is proposed which would alter that obviously very significant character of those words, then one acceptable – we would urge in this case vastly preferable – approach to that question of interpretation of the composite is to say that the latter, particularly when a choice was made not to include it in the former so as to alter apparently equally important components of the test for sufficiency to grant a visa, then the latter yields in the sense that if it can have a sensible meaning and operation other than by swamping the apparently prescriptive criteria in the statute, then it should be given it.

GORDON J: That is really your complaint.

MR WALKER: Yes.

GORDON J: Your complaint is that if you do not – to adopt your language – read down national interest, then it is, consistent with its political nature, both current geographical and overseas sufficient to, in effect, put aside – I use neutral language – all of the prescriptive criteria which you, no doubt, will take us to, which have themselves their inbuilt protection mechanisms.

MR WALKER: Yes.

GORDON J: Is that the way it is caught?

MR WALKER: Yes, exactly.

GORDON J: And is that any different from the analysis the Court undertook either in S297 or M47?

MR WALKER: No. It is the same method, and it is an attempt ‑ ‑ ‑

EDELMAN J: It is a question of interpretation rather than ultra vires, though.

MR WALKER: Exactly.

GORDON J: That is why I said of question construction, because as I understand your argument, you say otherwise, unless national interest is in the way it was. But in S297, read down in those circumstances, it is capable of subsuming the other provisions.

MR WALKER: Yes, to all of that.

GORDON J: With all the protections.

MR WALKER: Yes. And I am going to come to the specific tailored way in which criminality, particularly in relation to unauthorised travel to this country, is addressed with respect to eligibility for a visa or even a grant of a visa, as regulated. Your Honours are aware, of course, that the offending by our client may well – and I am not here to plead merit, but to put it in context – be seen as an activity undertaken of the kind that threatens no recidivism of its very nature and may very well have very evocative, notwithstanding legally irrelevant, human sympathetic aspects.

KIEFEL CJ: Mr Walker, are you able to say how you would have us read the reference to the national interest in clause 790.227?

MR WALKER: Yes. Without attempting any gloss of that phrase, by proposing an exclusion from it of matters addressed in particular in section 36, so that it should be read on the basis that it is the national interest judged so as not to involve departure from the assessment of compliance with criteria in section 36.

EDELMAN J: Why would you not just get that from the word “other” in section 35A(6)(b)?

MR WALKER: We do.

EDELMAN J: It is other than the criteria in section 36.

MR WALKER: That is right. The word “other” bespeaks non‑overlap. I have to say, your Honours, confidence falters in putting that argument if it is based on the idea that drafting is such as to avoid overlap. I cannot say that. But that is a natural colloquial understanding, (a), (b), (c) and “other” would mean not (a), (b), (c). So, yes, you can get that from that text, assuming that that, as we accept, is possible to be read, that is, the national interest positive requirement – criterion, I should say, is one prescribed by regulation for the purposes of section 31. If it be so, then it is other than those set out in 36.

Then we fall back on familiar canons, including these obvious two. The first is, well, to give proper work to everything in 36 and also to the national interest criterion in the regulation, one ensures that the last does not swallow up the first – that is the first thing – so that they all have work to do. The second canon, of course, is that, as I shall hope to show, 36 contains criteria which are manifestly much more specific – hugely more specific – than the general reference to national interest. In a sense, that should be the easiest proposition in my argument because it is very difficult to see anything more general than the national interest in terms of considerations by political officers in administering legislation. It is for those reasons that ‑ ‑ ‑

GORDON J: I think I put this to you already. Do you also rely on the beneficial nature of those more specific provisions in their terms?

MR WALKER: Yes, I do. We have used the word “balance” and ‑ ‑ ‑

GORDON J: I think it has been described in the authorities, the other ones I referred you to, as balanced.

MR WALKER: How shall I say? The Convention itself – I do not need to labour this point – is a form of codified compassion. It will include a dealing with people who have necessarily, in many cases, committed offences in the places from which they flee, such as taking property they are mean to give up to the authorities, and have probably been engaged in irregular, perhaps pseudonymous, travel.

Now, that is in the post-wartime conditions out of which the Convention grew, but your Honours will appreciate, in other words, that there may well be wrongdoing of a criminal kind which, in the context of the Convention which this legislation is directed to administering – that is, to be seen as a form of attempted compliance by the country with its international obligations – they will involve a balance between a number of different impulses. The impulse to deter people‑smuggling is obvious, but equally there is an impulse to take appropriate pity and offer appropriate refuge for people whose offending in that regard – in an accessorial role, for example – is readily understandable, and never likely to be repeated, et cetera, et cetera.

So, that is a crude version of the kind of balance. It is crude because it suggests that there are just two factors to be weighed together, and that will not always be so; in fact, one would think that there will always be more than two. One knows from the very purpose of so‑called SHEVS that another purpose is the national interest in obtaining what might be called – forgive the language – useful members of society.

So, yes, there is compromise and balance, and in our submission, now that we come to 36, it can be seen that, in particular, with respect to the kind of criminality in question in our case, Parliament – the supreme arbiter of the national interest by law – has said how the criteria should be understood, or what they should be in considering an application for one of these visas. Can I start with the checklist which is proposed by subsection (1A) of section 36:

An applicant . . . must satisfy:

(a) both of the criteria in subsections (1B) and (1C); and

(b) at least one of the criteria in subsection (2).

So, you have to get a tick in at least three boxes; and to put it shortly, because it is not contested, we got a tick in three boxes. But let me remind your Honours of the substance of those criteria. In subsection (1B), there is a criterion that, to put it mildly, is not a million miles away from a very important part of the national interest. Your Honours will see that with respect to a person being directly or indirectly a risk to security, there is a reference to section 4 of the ASIO Act – your Honours are familiar with it – I think in item (aa) in it, you will see words which are very broad, as one would expect them to be. And one sees that the negative criterion in subsection (1B) of section 36 is that there not be an assessment by ASIO. So, it is not matter for the Minister. ASIO provides the tick in that box by not assessing a person:

to be directly or indirectly a risk to security.

Of course, that is not whole of the national interest, but it is a very large part of it, and with respect to, in particular, the risk to security constituted by the sponsoring or implementation of illegal entry into the country of aliens, one can see, with respect, that is, a recidivist risk with respect to people smuggling, one can see the significance of the fact that the Minister is not the decision‑maker with respect to being directly or indirectly a risk to security.

GLEESON J: Mr Walker, this is one of the things I do not understand about this criterion. A tick on 36(1B) would do nothing to satisfy a Minister that it is in the national interest to grant someone a protection visa.

MR WALKER: We respectfully contest that. It certainly does not do everything to satisfy the national interest, that is absurd.

GLEESON J: But it is a hygiene factor. It would be ‑ ‑ ‑

MR WALKER: I am sorry, your Honour?

GLEESON J: It is a hygiene factor. The fact that someone is not assessed as a risk to security does not mean it is in Australia’s national interest to grant them a visa.

MR WALKER: Your Honour, I accept that. That is why earlier I used this idea of positive and negative – and yes, they are distinctly different. That is, being satisfied that it is not in the national interest that somebody enter is distinct from not being satisfied that it is in the national interest that they enter, et cetera.

So, I entirely accept what your Honours says, but may I say that does not diminish the significance of paragraph (1B) in contributing to the overall interpretive exercise. Is the national interest referred to in the regulation a set of considerations which ought to be read, given the generality of the expression national interest, as allowing the Minister to say, for example, I think this person is directly or indirectly a risk to security, and, may I say, we would of course volunteer that if it were at large, the question is it in the national interest to permit staying of person directly or indirectly a risk to security, then the answer will obviously never be yes, that is in the national interest, to permit them to do it. The answer will always be, it depends, and it is a mark against. Now, subsection (1C) ‑ ‑ ‑

GAGELER J: Have you finished with (1B)?

MR WALKER: I am sorry?

GAGELER J: I am not quite sure how (1B) works on your submission.

MR WALKER: It is what might be called a negative criterion, so you only get the tick if there is no such assessment.

GAGELER J: Does your submission lead to the result that the Minister cannot take into account a risk to security and it being satisfied for the purpose of 790.227 that the grant of the visa is or is not in the national interest?

MR WALKER: Not under the – no, not under the regulation. That is, the regulation is not a mandate for the Minister, in effect, to say ASIO should have assessed, is someone directly or indirectly a risk to security?

EDELMAN J: If you fail under (1B), you never get to the regulation.

MR WALKER: No, quite.

EDELMAN J: If you succeed under (1B) ‑ ‑ ‑

MR WALKER: Yes.

EDELMAN J: ‑ ‑ ‑ your submission is, the regulation does not allow the Minister then to use national security to second‑guess ASIO.

MR WALKER: To subsume it. In effect, to say that ASIO’s lack of assessment is nothing other than an event or milestone in a decision‑making record and imports nothing of substance. The answer, I think, to your Honour’s first question to me was, yes, that is what I am saying.

GAGELER J: So, it carves out the question of risk to security ‑ ‑ ‑

MR WALKER: That is right.

GAGELER J: ‑ ‑ ‑ from the national interest.

MR WALKER: Direct or indirect risk to security within the meaning of section 4, et cetera. It carves that out from the Minister’s national interest consideration.

GAGELER J: So, the Minister – effectively, on this submission – can only ever act on an assessment by ASIO. The Minister cannot be informed, relevantly, about national security by another security agency.

MR WALKER: That is correct. I need to go to 65 in order to make all of this good but, yes.

EDELMAN J: Why do you need to go that far?

MR WALKER: Just for the obligation, your Honour – obligation to grant, I mean.

EDELMAN J: Yes. Because if (1B) is read as concerned only with the assessment by ASIO ‑ ‑ ‑

MR WALKER: Yes.

EDELMAN J: ‑ ‑ ‑ and the regulation is concerned with those matters other than the statutory criteria ‑ ‑ ‑

MR WALKER: Yes.

EDELMAN J: ‑ ‑ ‑ why could not another organisation’s assessment of risk, security to fall within the regulation?

MR WALKER: No reason at all. That is why I said to Justice Gageler, the matters called up by ASIO’s attention to the section 4 meaning of “security” in the phrase “directly or indirectly a risk to security”, those should not be revisited, second‑guessed or subsumed, or rendered otiose by the generalised notion of national interest in the regulation. But, to the extent that there are others – which might be called, as a matter of ordinary English, a “risk to security” – not within section 4 – mind you, I have to say, that is a very broad definition – then, certainly, the national interest can extend that far. It is to be always remembered that the regulation, of course, is the positive requirement that the Minister considers it to be in the national interest to issue, to grant.

Can I come to subsection (1C) of section 36? There you will see in the statute there is a reference to security. So, in the statute, the Minister does have a role, but it is a role which is plainly a subset of the considerations to which ASIO has regard under the heading of “directly or indirectly a risk to security” within the meaning of section 4 because under subsection (1C), it has to be an alarm bell. In other words, the Minister has to consider, “on reasonable grounds”, that the applicant is not a person who:

is a danger to Australia’s security –

Whatever one might say about the lexical overlap between risk and danger, it is plain from the fact that different words are used – that “danger” is intended to be a more acute state of affairs – furthermore, one reviewable as to the reasonableness of the grounds in relation to Australia’s security.

Then an important telltale, in paragraph (1C)(b) you will see that with respect to the information or inference that might be gathered from the fact of a person’s conviction, so far as concerns a danger to the Australian community that the Minister considers on reasonable grounds to be, or relevantly, not to be true, is confined to what is called “a particularly serious crime”, and as the note points out, and I do not need to take your Honours to it, that is a provision which conjures through section 5M the notion of a serious Australian offence ‑ and that you will find in the supplementary joint book of authorities page 68 – involves matters which do not include the immigration offences for which we were convicted.

Now, that, in our submission, is a telltale – I do not mean it is decisive, it goes into the interpretive pot – and what it shows is that with respect to something which is called a criterion – now, criterion is something that operates as a reason to discriminate, yes or no, for example, and a criterion ceases to be so if actually it does not matter what you say because there is another way in which it no longer operates as a criterion, it can be subsumed or overtaken, and that is our whole point about the regulation, read as our friends would have it read.

Subsection (1C) plainly, with respect, shows the same kind of close attention to the nature of criminality as it happens, particularly in this area of migration offences, as is shown in the offence provisions themselves, including penalty provisions, which obviously show an attention to gradations of objective seriousness and, obviously enough, the possibility that one would say, of a migration offence, that the chances of reoffending are more or less zero, were a person to stay in Australia, given the nature of the facts such as in this case.

Your Honours see in particular the significance of reoffending, or what I have called recidivism, in the notion of being a danger to the Australian community. So, somebody who has committed an offence by assisting others in a boat without permission, because he and the others want to get away from where they are fleeing and want to come to Australia in order to achieve that, is not surprisingly considered by (1C) to be the kind of consideration which means that it is not a matter of being satisfied of being convicted of a particularly serious crime, there has to be a danger to the Australian community accordingly. One knows, simply from criminal sentencing itself, that one does not have, as it were, an absolute or standard degree of danger posed to the community by each and every offender for the same offence. That is why for the class of case:

a particularly serious crime –

it is significant that even then, the criterion in subsection (1C) requires the concluding proposition to be true that:

the Minister considers, on reasonable grounds:

that person is thereby:

a danger to the Australian community –

all of which, in our submission, would be undermined, subsumed, rendered otiose as an exercise if the Minister could, as it were, jump straight to the regulation and say, look, this person is not a danger to the Australian community – notwithstanding convicted of a particular serious crime – but it is in the national interest that Australia stand before the rest of the globe as strictly law‑abiding – never to reward anybody who has been convicted of a particularly serious crime by the privilege of being admitted to residence in this country. One can readily imagine a political program that, however perversely in historical terms, adopted that approach.

GORDON J: Am I right that the charge with which your client was convicted is not a particular serious crime within the meaning of section 5M?

MR WALKER: That is right. But I am engaged in an interpretative exercise here, trying to point out you do not have the broad, almost limitless, notion of national interest – the perception of national interest – being something that destroys the carefully‑calibrated balance – as we would put it – contained in subsection (1C).

STEWARD J: Does that mean that the Minister could, under the regulations, consider crimes that are not particularly serious crimes?

MR WALKER: Exactly.

STEWARD J: Yes.

MR WALKER: That is in the national interest that it is not only people convicted of particularly serious crimes – and I am playing with words here, I confess – but people who are convicted of serious crimes. There is a note of facetiousness in that argument, not entirely intended, because that is, in our submission, an entirely inappropriate relationship of the Minister’s role under the regulation, whatever it be, and what the Parliament has enacted in section 36 – including the ministerial assessment in subsection (1C).

When Parliament has set out these criteria and had the chance to put some universal solvent of a subjective view of national interest that might render everything else otiose and did not do so then it follows as a matter of interpretation – not ultra vires strictly, I accept – that the reading for which we contend ought to be preferred with the result, as your Honours appreciate, that there is a very quick way home at that point for us – because the decision was based upon the national interest understood in that dissolving fashion.

EDELMAN J: Mr Walker, just before you move on, can I just ask you about your answer to Justice Gordon? You said that this is not a particularly serious offence. The offence was under 233C, was it not?

MR WALKER: Yes.

EDELMAN J: Which is punishable by a maximum penalty of imprisonment.

MR WALKER: I am sorry, it is 10 years, I am sorry, yes.

EDELMAN J: Why would that not fall within the definition of “serious Australian offence”?

JAGOT J: You need violence against a person – “serious Australian offence” involves violence against a person – a “serious drug offence”, serious damage to property or an offence in immigration detention, so ‑ ‑ ‑

EDELMAN J: I see, it is cumulative.

MR WALKER: Yes, there is an “and” between (a) and (b) in the definition of “serious Australian offence”. I think that is what Justice Jagot is drawing to attention.

JAGOT J: Yes, I am just saying it falls out because you would not call people‑smuggling a violent ‑ ‑ ‑

MR WALKER: Yes. If we, as it were, applied in ordinary English – I stress, in ordinary English – if you applied the word “serious” to something which attracts sentences of the maximum kind permissible for these offences then, as any of us defending such a person or having such a person in the family would well appreciate, it is serious, really serious, but it does not answer the combined definition, which singles out four things. I cannot possibly explain why only those four or why all of those four. But it includes something which plainly attracts what might be called universal disapprobation in violence against a person, et cetera, et cetera.

STEWARD J: This argument is in this respect quite different to the one that appealed to Justice Rares in BAL19 where his Honour said that the choice in (1C) of confining it to a particularly serious crime means you have to read down 501.

MR WALKER: No, it is not the same as that.

STEWARD J: No. It is not an Anthony Hordern‑type point.

MR WALKER: No, no, no, no.

STEWARD J: No.

MR WALKER: Now, subsection (2) I do not need to spend much more time on as a matter of interpretation, but it does show that Australia’s international obligations are explicitly part of the criteria for the grant of such a visa. I will not dwell on them. Your Honours can proceed on the basis that we are paragraph (2)(a).

Now, could I then take your Honours please to 65. It is in the book, starting at page 95. Focusing on the material parts for our case of that provision, it is again a checklist approach. That does not downgrade its high significance for individuals and public administration. So ,there is satisfaction by the Minister concerning health criteria, and then what is tantalisingly, in this case, called:

the other criteria for it prescribed by this Act –

and your Honours know that I give weight to the fact that the opportunity was not taken to put the regulation into the Act. It is not in the Act or the regulations, and I will not go back to the arguments about that, but they have been satisfied. And the grant is not prevented by various provisions, none of which applies here – including, in particular, cancellation of temporary safe haven visas. The money – item (iv) – and then it is not a discretion; it is an obligation. If that is so, the Minister is to grant the visa and, if not so, is to refuse to grant the visa.

As your Honours have read, I do not need to elaborate in address much. We submit that that is a familiar statutory form of promulgating a scheme which tells the reader and the administrator implementing it how a decision should be made. Here are the criteria, if you are satisfied that there are ticks in the appropriate boxes, you are to do the following thing; grant or not grant; grant or refuse. That is what we mean when we say that on its face, according to the expressions you find by the combination of 36 and 65, this is both exhaustive and prescriptive. It does not say anywhere here, but there is a residual trump card permitting – or requiring, I should say – refusal, by reference to a completely unlimited notion of the Minister’s perception of the national interest.

In particular, no room, as we would submit, as a matter of interpretation and basic, as it were, coherence of regulation – in particular, that one cannot under the national interest say those criteria are not sufficiently onerous in respect of this particular individual, because Parliament has, as a matter of public law, pronounced those criteria for everyone and made it subject to assessments, evaluations, but not provided for exceptions by reference to any other matter which would serve by way, for example, of a discretionary exception to the application of a general rule. None of that appears, and that is certainly not the form of the words in the regulation that we attack.

EDELMAN J: Are not regulation 790.227 and other criteria within 65(1A)(2)?

MR WALKER: On an argument, I accept, is a possible reading of what it means for criteria being satisfied in the regulations. Yes, is the answer. And that means that it is critical to understand what it means to satisfy that criterion; hence that reason, the need to interpret it as to whether that is a criterion which, under the national interest, renders moot the satisfaction on those provisions which specifically address in particular criminal record, because, as I am going to show your Honours, it is only the criminal record that provides the point of departure for all of this in this case.

Furthermore, as your Honours have seen – if I can anticipate briefly – from the way we have written, in particular, in the outline what I have called the Chapter III argument, the impermissibly punitive character, it can be seen, to use the language of criminal sentencing, that it is general deterrence, absolutely not specific deterrence. It is general deterrence which is really the entirety of the substantive reasons given for the national interest assessment leading to the decision, which is entirely channelled through the national interest. In particular – no, I do not need to go further at the moment.

GAGELER J: Mr Walker, the structure of your argument is, I think, that it involves a number of discrete bites out of the national interest, is that right? So, one of them is 36(1C). Somehow it has a negative penumbra, and then you take the whole scope out of the national interest somehow. Then we are moving into another bite, are we?

MR WALKER: Yes. The bites are commensurate with – exactly congruent with – what is covered by the specific provisions of 36. So, another way of describing what we say about the combination of 36 and 65 is that they do not leave room for the regulation to permit a different way of deciding, because they stipulate for the way of deciding. So, when it comes to, I will call it criminality – I hope without offending my client – that is dealt with by 36, in combination with 65.

GAGELER J: So, we take 36(1C)(b) and, as I understand, what you say is sort of carved out then from the national interest is any conviction? Is that right? Any conviction for an offence?

MR WALKER: I may not have understood your Honour’s question. But we do say that the Minister cannot just seize upon any conviction – a string of relatively non-serious offences, for example. And for this protection visa – I stress, these are about protection visas. This is not about a general policy with respect to the admission of people to our community. But, for these protection visas, we know there is a balance being struck. Yes, it is by reason of 36 and 65 that one cannot allow, under a general national interest dispositive weight, determinative weight – that is, the operation of a criterion concerning criminality – outside those which have been specifically addressed here.

KIEFEL CJ: So, the specific excludes the general. So, what is left in the national interest?

MR WALKER: There is a huge amount in the national interest that is left. I mean, for a start, there is international relations. It can be, for example – well, I do not need to labour the point. The national interest extends to all manner, as I say, of malleable – according to the politics of the time – elections, international relations and conditions that alter frequently – economic conditions, for example. They are not in terms or precluded by the combination of 36 and 65. But, insofar as matters are, in our submission, covered by, in particular, the way 36 approaches the matter, then it would be contrary to the enactment of those provisions for them to be understood as meaning – but, for example, the description of a particularly serious crime does not really matter because the Minister is able, under the rubric of the national interest, to take a dim view of not‑so‑serious crimes.

EDELMAN J: And presumably could do so unreasonably.

MR WALKER: Well, you would not – your Honours would not expect to say yes to that too easily. There is not the same express safeguarding, no.

GLEESON J: Could I ‑ ‑ ‑

MR WALKER: But most – I am sorry. Excuse me, your Honour. May I add, that is one of the reasons why the national interest is a phrase that has, perhaps, a freight in this kind of case greater than any other phrase, because your Honours would be very, very chary of coming anywhere near being thought to be substituting your own view for the view of a Minister concerning the national interest. It is justiciable, yes, but it is one where, with respect, the judgment would be slow to form, that simply because one thinks, for example, the policy is unwise and the consequences fraught, that it is therefore not in the national interest. I am sorry, that would be your Honours deciding a purely political question, and it is for those reasons that the reviewability of a decision about the national interest perhaps is not so simply put as it must be reasonable or not unreasonable.

KIEFEL CJ: Would the national – I am sorry, Mr Walker.

MR WALKER: It may be, at the end of the day, an adjudication which seeks to be a proper exemplar of separated powers would nonetheless be expressed in terms of legal reasonableness, but would specially, by reference to how that quality ought to be understand when a court says of governmental policy that it is not in the national interest – which is a very difficult outcome easily to imagine.

KIEFEL CJ: That is what I was going to ask you, whether or not the national interest in 790.227 could encompass effects upon government policy understood in the international sphere.

MR WALKER: If it stood alone – it does not have to be in the international sphere, it could be domestically. In other words ‑ ‑ ‑

KIEFEL CJ: But it is sending – I mean, the particular one here is meant to send a message.

MR WALKER: It is sending a signal, which I am going to come . Your Honours have seen in the – I do not know. The short answer is were it to stand alone, the national interest could easily – and probably without any practical possibility of judicial review – include what might even be idiosyncratic views about the need to be harsh in order to be deterrent, for example. And I will come to the way in which this Minister actually accepted advice ‑ ‑ ‑

KIEFEL CJ: But it does not have to operate as a deterrent to undermine government policy. You say that the only aspect here of government policy is it has a deterrent effect.

MR WALKER: No, perhaps I will come to the particular terms in a moment, but it is certainly, on any view of it, in this decision deterrent. Undermining government policy is a figure of speech which will certainly include, surely – to mix my metaphors – the other side of the coin, which is a message should be sent to counter that, to stop it from being undermined, so as to prevent people from being, for example, willing to undertake these ventures. I am sorry, Justice Gleeson.

GLEESON J: Thank you, Mr Walker. In this case, we are dealing with a complexity that arises out of criminality, but as I understand it, this Act sets out our legislative response to the Refugee Convention.

MR WALKER: Yes.

GLEESON J: You could envisage a case where a group of people or a person satisfied the criteria for a protection visa, there was no question of criminality or character but, for example, Australia might be at war with a country and that might affect a political view of whether or not we should accept refugees from that country.

MR WALKER: That would surely be – I hope it would be the heartland of ASIO under (1B). If it is not, I hope Estimates would ask why not.

GLEESON J: Well, that might be the heartland of it, but I think what my question is is whether or not the Act is really articulating the Australian response to the Refugee Convention ‑ ‑ ‑

MR WALKER: It certainly is doing that.

GLEESON J: ‑ ‑ ‑ which is not wholesale, but would the national interest regulation have any room for operation in a circumstance which effectively operated to shift the usual criteria for refugees, even putting aside questions of criminality or character, and if not, why not?

MR WALKER: First of all, yes. We should look at this with a constant eye on the Convention but, of course, it does not – this is no reproduction of the Convention and it may or may not be exactly congruent. Your Honours see familiar Convention‑derived considerations, for example, in subsection (2C). So the long‑established disadvantage suffered by persons who have committed war crimes, for example, has an effect upon the possibility of the Minister being satisfied of protection obligations, for example.

Now, it is for those reasons that it will be, obviously, case by case to determine whether something the Minister has taken into account under the rubric of the national interest and in the form of I am not satisfied of the positive criterion that a grant is in the national interest. Case by case will obviously reveal whether that is cutting across in the sense we have argued the calibrated and nuanced provisions of section 36. If it does, then that is – with all the dangers it may represent, accepting Justice Gageler’s figure of speech, that has been bitten out. That part has been left to section 36 and to the personages there named and to the details of the criterion in question. The details for the criterion in question for criminality – and that is what our case is concerned with – looks to a particularly serious offence and a danger to the Australian community, for example, which leaves ours obviously in a quite different case.

It is the unseemliness of a national interest perception by a Minister substituting for – in a way that amounts to contradicting – the regulation of the decision‑making by the criteria expressed in section 36, which is the heart of our interpretive argument. You would not interpret parliamentary intention in that fashion, accepting as we must that the regulation in question is parliamentary – you would not interpret that as if it had been placed into section 36 in a way that made it, as it were, a trump card over all the others, if ticks were got in the three requisite boxes.

STEWARD J: Mr Walker, you are probably are coming to it, but are you going to address 501(3)?

MR WALKER: I am so sorry, your Honour?

STEWARD J: Are you going to address 501(3) in its relationship to the regulations?

MR WALKER: Indeed, I am, yes. In fact, I am coming – I am trying to shorten some matters. I am indeed up to that fourth dot point in our proposition 2. I do not want to add any more to what we have written in our submissions on the third dot point in proposition 2 concerning the criminality matter, about which I probably said more than I should in terms of time.

As to the fourth dot item in proposition 2, that is what might be called an ultimate control power with respect to these visas. Your Honours will pick it up starting at page 115 of the book. This brings to the fore the character test, as well as what I am going to call a negative criterion with respect to the national interest. What we can say about the character test – it has some significance to our arguments about the interpretation of national interest in the regulation – is that ours is not a case where failure of the character test, notwithstanding criminality, is a cross in the books.

GORDON J: I missed what you just said then, I am sorry, Mr Walker. What did you just say?

MR WALKER: This is not a case where, by reason of the character test, our application was refused.

GORDON J: That is, the Minister did not exercise the discretion to refuse to grant the visa because your client failed the character test?

MR WALKER: Exactly so. As I said, there has been previous litigation – I do not need to go to any of that – but, as Justice Gordon has pointed out, there is a discretion, it involves the possibility of invoking the character test and this case is not one of those. We would not be here if it had been, obviously – we would be somewhere else seeking judicial review. Under subsection (3), which is an important provision for our argument, again a discretion is created either to:

refuse to grant –

or to:

cancel a visa that has been granted –

if – there are two things, and they are cumulative. There has to be a reasonable suspicion:

that the person does not pass the character test –

Your Honours can and should proceed on the basis that it is not actually available here, but for my interpretative argument, I want in particular to turn then into the next provision:

and

. . .

the Minister is satisfied that the refusal or cancellation is in the national interest.

So, it is a positive criterion but this time for what I am going to call an “adverse outcome”. So, it is not quite the same – it is not at all, really, the same as what the regulation does. When one reads 501(3), one can see the national interest in all its generality is tied as a cumulative or conclusionary proposition concerning a reasonable suspicion that a person does not pass a character test. Your Honours will appreciate that those are provisions which, presumably – from their very terms – include cases where obscurity of fact renders a decision concerning passing the character test not a clear‑cut one.

Then, of course, under the national interest – under 501(3) – matters could be considered, including what I am going to call “acceptable risk” – that is, of the unknown, et cetera, et cetera. But that is not a provision which trumps the reasonable suspicion that the person does not pass the character test. That is necessary as an accompanying state of mind by the Minister in order for that drastic discretion to become available. So, in its own rather more limited zone of operation quite different from the grant that we are seeking, that reference to “national interest” does nothing to cut across our arguments – if anything, to the contrary.

STEWARD J: Can a Minister hold a state of satisfaction that a person – that he or she is satisfied that refusal is in the national interest and, at the same time, hold a state of satisfaction that a grant is not in the national interest?

MR WALKER: I think there are some permutations which are difficult, yes, but, not on our interpretation, as we would urge.

STEWARD J: I understand that. I suppose the other point of asking the question is to say, if the Minister is looking at the national interest personally for the purpose of 501(3), what is left for the national interest in the regulations? One is expressed, as you said, as a negative test. The other is a positive test. If the Minister is not satisfied that refusal is in the national interest here, can he or she be satisfied that grant is not in the national interests in the case of the regulations?

MR WALKER: Yes – and that is a case which has real – that is a matter that has real point here. Can I explain?

STEWARD J: Sure.

MR WALKER: Yes, is the answer to your Honour. Under paragraph (6)(ba) of section 501 – you will find it at page 117 – among the possible ways – they are not cumulative – among the possible ways in which one does not pass the character test is a reasonable suspicion of something which, in this case, your Honours know would be true. There is a conviction under 233C. One can see, therefore, the significance in this case of failing to pass the character test not being a reason for the decision against us.

It raises the question of, why would that be so if the power under subsection (3) of section 501 were available, as it was, and involved, with respect to the state of affairs revealed by the Minister reasonably suspecting the person does not pass the character test? The superadded or cumulative question is the refusal or cancellation in the national interests. Now, I cannot go so far as to say that an evident failure of the Minister to be satisfied that the refusal is in the national interest amounts logically, by a kind of zero‑sum approach, to the proposition that therefore the Minister – as a matter of law, so to speak – had to be satisfied that grant was in the national interest; that is the point about negative and positive.

But it does, in our submission, cast considerable light, interpretatively, on the decisional scheme set up by these provisions and in particular, adds weight to the notion that you would not find in this regulation – not added to the Act, but put in the regulation – you would not find in that regulation a reference to the national interest that is somehow expressed in a way that, on the merits, is surely at odds with the absence of the negative determination under paragraph 501(3)(d).

GAGELER J: Continuing with the metaphor, this argument carves out of the national interest, within the criteria in the regulations, anything would cause a person not to pass the character test?

MR WALKER: No, I am not saying that at all.

GAGELER J: I see.

MR WALKER: No, not at all; to the contrary, the national interest is specifically stipulated in 501(3)(d) as the subject of the formulation there, that is, a discretion to refuse, if satisfied, refusal is in the national interest. So “carve out”, I would avoid that.

GAGELER J: I am trying to tie it back to your argument about the construction of clause 790.227. What do we take out of those words – the national interest – in that clause, having regard to section 501(3)?

MR WALKER: In a sense, it is simply answered by saying the regulation does not alter 501(3)(d). That is ‑ ‑ ‑

GAGELER J: Of course not, because the obligation under section 65 is still there.

MR WALKER: No – quite. I am not suggesting your Honour has suggested contrary. I am perhaps thinking aloud, I think your Honour is asking me, how does the national interest in the regulation affect, translate to, in any way, alter, or throw light upon 501(3)(d); and I think the answer is, no, it does not.

GAGELER J: No, I am asking you the opposite question.

MR WALKER: I am sorry.

GAGELER J: As I understand your argument, it is now all about the construction of the regulation ‑ ‑ ‑

MR WALKER: This part is, yes.

GAGELER J: ‑ ‑ ‑ and what I am asking you is, what does 501(3) tell us about the construction of the regulation? What do you take out of those general words, the “national interest”, by reference to 501(3)? That is what I am asking.

MR WALKER: That where – that the Act can, and here does, enlist a ministerial state of mind about the national interest, concerning a different action, of course, refusal as opposed to grant, then it is to be understood, as we submit section 501 all combines to show, in that – in subsection (3), it is to be understood as being directed to the state of affairs when there is a reasonable suspicious that a person does not pass the character test. This is a refusal, as the heading shows, on character grounds. So, to put it by way of example that has already been raised, this is not the occasion to refuse because a person is a Russian, and international politics make that popular, for example. If, as I hope is still the case, being a Russian does not mean you fail to pass the character test.

So, you have passed the character – you would pass the – I am sorry. There is insufficient known about you, because you are fleeing, for example, there can be a reasonable suspicious that you do not pass the character test, but in our submission you can not simply say, well, that would not be the reason, I would refuse in the national interest, it is because you are Russian.

EDELMAN J: In a case with facts like this case, is the only room left for the regulation in circumstances where the Minister does reasonably suspect that the person does not pass the character test, and that the Minister is satisfied, or is not satisfied that the refusal is in the national interest. That logical gap that you referred to, where the Minister can be not satisfied of one thing but, arguably, possibly satisfied of the same thing at the same time.

MR WALKER: I am bound to accept what your Honour fairly calls a logical gap. I hope it is not a gap in my logic, but is a gap left, with respect, to stipulated decision making.

EDELMAN J: I can understand there is a matter of logic ‑ ‑ ‑

MR WALKER: Yes.

EDELMAN J: ‑ ‑ ‑ that there is that gap there, but what I am struggling with and I think this arises from the question Justice Steward asked as well, is what factual circumstance could ever fill that gap, what factual circumstance could there ever be where the Minister is not satisfied that the refusal or cancellation is in the national interest, and yet then goes on to cancel the visa, in that group of cases where the person ‑ ‑ ‑

MR WALKER: Well, none.

EDELMAN J: ‑ ‑ ‑ is reasonably suspected not to cancel ‑ ‑ ‑

STEWARD J: May I say, I share that concern.

MR WALKER: None. Your Honour asked me about they then went onto cancel and I want to focus in this case on if they give a grant, of course, where we need the positive criterion, it is in the national interest to grant. That is where I locate what I have called the logical gap. However, in our submission, this is a case where we know 501(3)(d) did not operate adversely to our client.

EDELMAN J: I appreciate that, I am probably putting the question badly.

MR WALKER: I am sorry, your Honour – and accordingly, it is really very difficult to understand except for the general deterrence, which is the reason the Minister proceeded. It is difficult to see, as opposed to what I am going to call something subjective to our client, the character test, it is difficult to see really, that there is not a very serious irreconcilability of the approach that the Commonwealth urges.

GORDON J: Can I ask you about that? I think I must have misunderstood your submissions in writing. I had understood that one of the things that you relied upon in relation to that – the irreconcilability of these things – was that under 501(3) the way in which the scheme had been structured was that the accountability for a decision under 501(3) was that there was to be the laying before each house of Parliament within 15 days of the making of the decision and so on in order to, in effect, to explain the way in which Parliament had sought to balance the considerations you raised earlier. Do they affect, at all, this analysis?

MR WALKER: I do not put that to the forefront, no, at all. I am sorry Justice Edelman, I do not think I have answered a question of your Honour’s, I am sorry.

EDELMAN J: I think the difficulty that I am having is understanding how, if one accepted for the moment the premise of your argument – the carving‑out of the national interest in the regulations – each of the specific criteria, positive or negative in the Act, if one comes to the specific criteria in section 501(3) and assumes that (3)(c) is satisfied – so the Minister reasonably suspects the person does not pass the character test – and that (3)(d) is also satisfied – that the Minister is satisfied that the refusal is in the national interest – could there ever be, apart from in the realms of logic, any way for the regulation then to operate?

MR WALKER: Not as a matter of practical, explicable public administration, no.

EDELMAN J: And if there were, then to come back to Justice Gordon’s point, it would then cut across provisions like 4A, which require Parliament to have a role.

MR WALKER: Well, it would not cut across it but it would certainly render that less than useful. Yes.

GORDON J: Well, it would not happen. If you do not use the 501(3) route, then there is nothing for Parliament; if you adopt this route you do.

MR WALKER: So, that safeguard would be less than useful, yes, I agree.

GORDON J: And that is not the only safeguard.

MR WALKER: No, no, no. Your Honours, could I then move, please, in fairly short compass because your Honours are aware that there is little dispute about these matters, to the way in which these matters were expounded to the Minister and the way in which the Minister proceeded.

In the application book – and this is only a selection of some of the references – at page 54 perhaps the germ of what we submit is a straightforward error in administration occurred – under the heading “Potential options”, “Option 1” is addressed to the Minister:

the Minister to take no further action –

Then it will be referred to a delegate:

If all remaining criteria . . . the application will proceed to grant –

Then “Option 2”:

It is open to the Minister to consider personally refusing –

And there is nothing there, of course, about personally granting, and some, how shall I say, circumspect discouragement is expressed at the end of that paragraph after the reference to “indefinite detention”, there is a reference to what is called “departmental policy”, the criterion – being the “national interest considerations”:

is usually only considered in exceptional circumstances by the Minister, when the other criteria for the visa, including character and security requirements, have been met.

Then in the next paragraph there is an emphasis concerning the significance of a “national interest” consideration as something apt, without interpretive control, to cover every field imaginable. Your Honours see the reference to:

Delegates do not rely on the criterion as the Commonwealth’s long‑standing position is that what is in the national interest is largely a political question of considerable breadth, entrusted to the Minister personally.

Now, whether that be law or practice does not matter, it is, with respect, a statement difficult to contest as to, at least, a description of a sensible perception of matters.

GLEESON J: But it does involve a misunderstanding of the criterion.

MR WALKER: Yes, I do not – that is, of course, the burden of our song. I draw that passage in particular to attention because of, as well, the incorrect understanding of what the Minister could do, that is, what was available. Could I show you another germ of things at page 63, in paragraph 38, a possibility of a grant of a SHEV leads to the advice that:

the case has the potential to be marketed by people smugglers as a weakening of . . . border protection policies –

et cetera, et cetera. Could I then go to the record of the decision and reasons, picking it up at 94. You will see in paragraph 22 the reference that we have written about in our submissions concerning sending the wrong signal. As I say, in terms of criminal sentencing, that is general deterrence. There is no element of specific deterrence against ENT19 himself. There is the statement as if axiomatic that:

It is not in the national interest for a person convicted of people smuggling to be seen to get the benefit of a protection visa.

Now, Parliament has contemplated that can happen and surely, with respect, the Minister’s correct perception that the national interest standing alone, that is, without context, is a very broad matter – surely the Act cannot be understood as permitting the Minister to say of that possibility explicitly enacted that it is not in the national interest it occur. That is, though there may not be an exact correspondence, except in some MPs’ dreams, between votes in the houses and the national interest, for all purposes in – for the rule of law for all purposes, while valid, Acts of Parliament are to be taken to be Acts of our national self‑government, so a very close relation to the national interest as perceived by the voting majorities assuming, as one must, that they are voting in the national interest.

It is for those reasons, in our submission, that there is as we have put – I do not shrink from saying – an unseemliness in that last sentence of 22 because it treats the national interest as a way of saying, that which Parliament says is possible, I say is against the national interest, and that, in our submission, is not a coherent, let alone internally reconciled way of understanding the provisions Parliament has made in that very regard. For what it is worth, your Honours know of the clarity of the position – see page 96, paragraph 31, second last dot point concerning the ground for protection obligations for our client. So this is a case where, for example, refoulement is something of real moment, that is, looking for alternatives in particular.

STEWARD J: Just harking back to paragraph 22 and, if necessary, 23, do you say that these are reasons, or matters of subject matter, that are covered by 501(3)(d)?

MR WALKER: Yes, yes.

STEWARD J: So, therefore, excluded from consideration under 790.227?

MR WALKER: I am hesitating because one is negative, one is positive.

STEWARD J: Well, they are both reasons to refuse the visa.

MR WALKER: They cut across the provisions of 36 that are identified. They certainly travel outside character tests – reasonable suspicion of failing character tests – with respect to 501. Our concentration, obviously, is on 36 and 65. Certainly, as we have argued, the regulation is, therefore, unavailable to put to one side as dispositive of the mode of decision making and the available options that those provisions permit.

Your Honours, before I leave the provisions, out of what I hope is an appropriate approach to taking the Court to provisions, could I draw to your attention something that we say does not matter but, because of its terms, I should draw it to your attention? It is section 46AA – I do not want to dwell on it. It is not in the book of authorities, and there is a reason for that because this is not a case about an invalid application. But I have drawn it to attention because there is in subsection (3), references to regulations prescribing:

criteria that must be satisfied . . . for a visa of a specified class to be a valid application –

And there is a kind of “drop dead” effect if there are no regulations in effect prescribing criteria that must be satisfied. It is just that it uses the word “regulations”, so it is another, perhaps, straw in the wind for understanding the status of what I have called the regulation 227. In this case it is one of the puzzles that would need to be addressed in a case, if it ever arose, where the invalidity of an application were asserted.

Your Honours, proposition 5 gets not much print in our outline, and I do not really want to add to what we have written about it. We accept that one provision of a statute does not render, in any sense, ultra vires or invalid another provision of a statute. But we do say that, with respect to the reconciliation of the two, another – not to be preferred – way of describing the kind of argument we have essayed, is that so much of the provision – as is repugnant to what I will call the leading provisions to be understood – are invalid or in effect inoperative. In our submission, it is better to take the road of interpretation, including so‑called reading down, that I have spent time on.

Now, your Honours, may I then move to the discrete topic raised by the detention which is the consequence of there not being a visa granted. Your Honours, I do not wish to plough well‑ploughed ground in our propositions 6 and 7 – they are simply, as it were, substrate for what we would need to persuade your Honours. That starts in proposition 8.

I have drawn to attention what we know about the grounds for the Minister’s Decision. The further reference that we have drawn to your attention at page 143 of the book – I do need to dwell on it – concerning the way in which our client was informed – the expression there used about point 4 of the page was:

“could undermine the integrity of the protection visa program . . . a key element of which is the deterrence of people smuggling.”

Now, by reason of the operation of provisions only too well‑known to your Honours, the refusal to grant entails detention in custody. In a compressed form, such custody, such detention, is of its nature apt – not bound, apt – to indicate punishment. But, demonstrably from the authorities in this Court to which we have referred in our written submissions, that is not so whether detention serves a purpose, such as pending consideration of applications to regularise presence in the country – one way or the other – and, most importantly for our case, detention pending deportation – that is, removal from the country, having been lawfully denied permission to stay in the country.

No part of our argument is intended to canvass any aspect of those authorities, including the matters that are raised outside Court with respect to the chilling notion of indefinite detention in case of failure – that is, either by impossibility or for want of effort to find somewhere that will take a person to be removed.

Now, as AJL20 points out, inherent in the exercise of a power which, in this case, involves the duty to detain, is subject to judicial review in the broadest sense. And that was, with respect, the hedging around of the possibility, plain on the face of the scheme we have, of indefinite detention. That is the reason why, hedged around with the possibilities for judicial review, a detention does not cease to be for a proper purpose, because the Court can by, in particular, appropriate mandamus, ensure that that which is involved in removal, the outcome to which the detention looks as being the detention to an end, and thereby ensure that, as it were, mere inaction does not produce the tyranny of a punishment without trial or crime.

In particular in that case, that was highly significant in order to address and dismiss arguments about the availability of habeas relief – that the notion of release, which informs the point of seeking that writ and the effect of granting it – that is, granting final relief upon it – obviously is inappropriate, while so ever the purpose of detention for control of migration is on foot. This Court is not faced in this case with a person who says that, simply by dint of the effluxion of time, that is to be treated as no longer possible.

Instead, what we have is a case where, by dint of some legislative tinkering, as I would suggest it is, there has been brought about the situation where the very thing which would ultimately be the object of a mandamus for the hedging around of detention so as to ensure that it can be always be adjudicated, ultimately, by this Court, as to whether its duration is excessive or not – that is, in danger of its proper purpose being unavailable to justify it. In this area, one sees that the provisions to which I am about to come in 197C have removed the capacity to respond to a mandamus.

Can I try and make good that by taking your Honours first to that provision. In the joint book it starts at 103. As your Honours know from our submissions, we draw to attention the alteration which in subsection (3) chapeau changes from, section 198 does not require an officer to remove if, to:

section 198 does not require or authorise an officer to remove –

It is one thing to stipulate for positions which, if I may say so, the noncitizen would derive a benefit from there being no requirement to remove. It being recalled that the scheme starts with the extremity of the duty pronounced in section 198, and descends in relation to asylum to what you see in subsection 197C(1), which renders irrelevant non-refoulement obligations.

So, against that what might be called stringent framework, one sees the detail in subsection (3) and looking at it as it was before the words “or authorised” were inserted, you have matters which understandably for a person who has made an application, who seeks something of benefit, obviously is to the advantage of that person in a manner that Parliament appreciates, and thus the removal of the obligation to do something which, in practically every case, would be calculated to frustrate what the applicant wanted – that is, the noncitizen wanted.

There is a somewhat different complexion produced by the stipulation that the section 198 – I will call it – obligation does not operate as such. That must be what the words section 198:

does not . . . authorise an officer to remove –

in the case of what I will call the finished business, the administrative business. And it means that there is, in the case of persons such as my client, but for an outcome in favour of my client – it means that there is a period of detention during which there cannot be the removal, which is the ultimate object that renders the detention itself non-punitive.

Now, I do not suggest for a moment that you will find in any extraneous material that is a consequence that one can understand Parliament was intending to achieve; that is, there is nothing in old-fashioned terms that constitutes a mischief to which those provisions were thus directed, but some meaning has to be given to those words and we submit, as you have seen in our written submissions, that the only meaning that can sensibly be given to them is that this is now a power to detain not capable of being policed by the Court because – by a mandamus, because the Court obviously will not issue a mandamus for someone to do something or to take steps towards doing something which they do not have authority to do.

Your Honours, I do not have all that much left, but is that a convenient time?

KIEFEL CJ: Yes, it is. Thank you, Mr Walker. The Court will adjourn until 10.00 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL 10.00 AM WEDNESDAY, 15 MARCH 2023