Applicant S170-2002, Ex parte Re Ruddock, MIMIA

[2002] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S170 of 2002

In the matter of -

An application for Writs of Mandamus, Certiorari and Prohibition against PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT S170/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON MONDAY, 8 JULY 2002, AT 10.30 AM

(Continued from 11/6/02)

Copyright in the High Court of Australia

MR M.E. DEAN, SC:   Your Honour, I appear for the applicant/prosecutor, with MR P.C. ROZEN.  (instructed by Slater & Gordon)

MR S.B. LLOYD:   May it please the Court, I appear for the Minister.  (instructed by Blake Dawson Waldron)

HER HONOUR:   Is the applicant here?  Perhaps you could come down here so that you can see and hear what is going on.  Is there an interpreter present?  Could the interpreter be sworn, please.

NUTAN MAHARAJ, affirmed as interpreter:

HER HONOUR:   Mr Dean, is it sufficient at this stage if the interpreter simply translates to your client without interpreting back out loud?

MR DEAN:   Yes, your Honour.

HER HONOUR:   Do you understand that?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   Is that sufficient?

APPLICANT S170/2002 (through interpreter):   Yes.

HER HONOUR:   That is sufficient, is it?

APPLICANT S170/2002 (through interpreter):    Yes.

HER HONOUR:   Could you both be seated where you can see and follow the proceedings.  Yes, Mr Dean.

MR DEAN: Thank you, your Honour. Your Honour, this is an application for an order nisi directed to the respondent to show cause why writs of mandamus, certiorari and prohibition should not issue in relation to a determination made by the Ministerial Interventions Unit that the applicant did not meet certain criteria in relation to an application pursuant to section 48B of the Migration Act 1958. An amended draft order nisi was filed with the Court on Friday, your Honour, and that has been served on the respondent and I would seek leave to rely on that if that is necessary, your Honour.

HER HONOUR:   Yes, I have that further amended draft order nisi.  That challenges two decisions, namely the decisions of 25 March and 3 April 2002.

MR DEAN:   Yes, your Honour.  Your Honour, the issues that arise in this application have not as far as we can tell been the subject of any decision by this Court and the issues give rise to an important question in relation to the operation of the Migration Act, namely the proper exercise of the Minister’s power pursuant to section 48B of the Migration Act to allow a second application for a protection visa to be made in circumstances where an unsuccessful application has previously been made.

What I intended to do, your Honour, if it is convenient was to deal firstly just with a summary of the factual outline in relation to the matter and then deal with the relevant questions of law that arise in relation to the application. 

The applicant, your Honour, does not take issue with the chronology which is set out in the respondent’s outline of submissions. The applicant has consistently maintained that he is a refugee from Nepal with a well‑founded fear of persecution by reason of his membership of a political group, namely the Communist Party of Nepal. Following an unsuccessful application for a protection visa and a review of that decision by the Refugee Review Tribunal, the applicant sought to have the Minister exercise his power under section 48B of the Migration Act to exempt him from the operation of section 48A of that Act and thereby allow him to apply for a protection visa.

The essence of the factual foundation of the application is to be found in Exhibit D to the affidavit of Christine Annabelle Bateup filed on behalf of the respondent. That was, your Honour, the first application made on the applicant’s behalf for the Minister to consider to exercise his power pursuant to section 48B of the Act. In summary, the application, which was in the form of a letter prepared by solicitors then acting for the applicant, pointed to significant changes in the political situation in Nepal since the applicant’s application for a review by the Refugee Tribunal had been determined.

It would appear that attached to that letter was a consular information sheet from the US State Department.  I do not have that, your Honour, and it does not appear to have been attached to the respondent’s affidavit but it clearly refers to a deteriorating political situation in Nepal as the result of an ordinance which came into effect in late 2001.

Exhibit F, your Honour, to the affidavit filed on behalf of the respondent is a further application made by the applicant to the Minister ‑ and this was an application made by the applicant whilst detained at Villawood - and that also sets out the basis on which the applicant sought the Minister to exercise his powers under section 48B. From both Exhibit D and Exhibit F, in my submission, it would appear that there has been a material change in circumstances in Nepal and the case would therefore appear to ‑ ‑ ‑

HER HONOUR:   Yes, but material to whom?  You see, the difficulty you have, Mr Dean, as I see it, is that the Tribunal’s decisions starts off by saying every document in this application is “a fake”.  The Tribunal worked on the basis that the basic – well, the underlying claims with respect to the applicant’s position was simply false.

MR DEAN: Your Honour, the primary decision‑maker originally found that the applicant did have a subjective fear of persecution himself and then went on to consider whether or not that was a reasonably based fear of persecution and decided the application adversely to him on that basis. There was no finding by the primary decision‑maker that the original documents provided by the applicant were fakes. True it is that the Refugee Review Tribunal made that finding but that, in my submission, is not necessarily fatal to any consideration by the Minister to exercise his power under section 48B of the Act.

HER HONOUR:   It may not be fatal but you have to go somewhat further than saying it is not fatal.  You have to ‑ ‑ ‑

MR DEAN: I understand that that finding was made by the Refugee Review Tribunal, your Honour, but in the circumstances of this case the applicant has been able to point to in Exhibit D and Exhibit F a material change in circumstances in Nepal. Now, the question as to whether or not he then fits within the criteria applied by the Minister as to whether or not a protection visa should be granted is a separate question as to whether or not he ought to be entitled to make an application for a subsequent protection visa because section 48B, your Honour, is not concerned with the determination of the ultimate question. It is concerned with the Minister effectively allowing an applicant to make another application.

Now, if that is so, then the question of the authenticity of the documents originally relied on may well be a matter that would be revisited by the applicant.  We are concerned here with a threshold question, your Honour, and that is can the applicant make a further application, not are there any merits in a further application.

HER HONOUR:   Yes.  I do not follow your argument though that the changed circumstances are necessarily material. 

MR DEAN: Your Honour, the purpose of section 48B, in my submission, would be to provide a means where an unsuccessful applicant for a protection visa, faced with either a material change in their personal circumstances or a material change in the circumstances in their country of origin, can apply again for a protection visa. Now, an applicant would have to be able, in my submission, to point to some change in the circumstances that they originally relied on to be able to bring themselves within the object of section 48B. What this applicant has done has pointed to a deteriorating situation in Nepal.

Your Honour, as far as the finding of the Refugee Review Tribunal is concerned, it is not clear whether or not that was relied on by the Ministerial Interventions Unit in its finding that the applicant did not meet the guidelines that it applied.  We have no way of knowing as to whether or not that was the ‑ ‑ ‑

HER HONOUR:   You say you have no way of knowing.  I think in other cases freedom of information applications have been made, have they not?  Do you know anything about that?

MR DEAN:   I am not in a position to answer that, your Honour.  This application has proceeded on the basis of the two letters that the applicant received stating simply that he did not meet the guidelines, without providing any reasons as to why he did not.

Your Honour, in our submission, section 48B of the Migration Act clearly provides the Minister with a discretion to effectively allow an applicant to make a subsequent application for a protection visa.  By its nature, in my submission, your Honour, that power is a compellable power when one ‑ ‑ ‑

HER HONOUR:   Your difficulty is subsection (6).

MR DEAN: Yes. That is clearly the issue that arises, your Honour, and the operation that subsection (6) has. Subsection (6) clearly cannot oust the jurisdiction of this Court. It would appear from the privative clause, section 476(2) of the Migration Act, that at the time that that clause was enacted, it was recognised that the Federal Court had power in relation to section 48B, otherwise there would have been no point in providing that the Federal Court and the Federal Magistrates Court did not have power in relation to section 48B.

HER HONOUR:   Why do you say that?

MR DEAN: When one looks at section 476(2) of the Migration Act, that provides that ‑ ‑ ‑

HER HONOUR:   Yes, I know what it provides but it does not ‑ ‑ ‑

MR DEAN:   What it says ‑ ‑ ‑

HER HONOUR:   The first question is really whether independently of 476 it was a reviewable decision.

MR DEAN:   Yes, I accept that, your Honour.

HER HONOUR:   And for your purposes, it has to be a reviewable decision for which one of the constitutional writs will issue.

MR DEAN:   Yes, that is so.  That is clearly the question.

HER HONOUR:   Relevantly, you need mandamus.

MR DEAN:   Yes, that is right.

HER HONOUR:   Which goes to compel performance of a duty.

MR DEAN:   Yes.

HER HONOUR:   That is where you come to subsection (6).

MR DEAN:   The first question, in my submission, is to characterise the nature of the power, or the power that has been conferred upon the Minister by subsection (1).  Now, it is a public interest power and it is clearly a power that would meet the criteria referred to in Kioa v West and referred to in Miah.  When one looks at one of the earliest decisions in relation to this, which is referred to in Aronson and Dyer – I provided an extract of that on Friday to the Court, your Honour - it reproduces the famous passage from Julius v Bishop of Oxford.  This is at page 589, and this passage has been referred to in many other decisions.  Your Honour is no doubt well familiar with it.  If I could just take up the passage that begins:

But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.  Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen’s Bench to decide, on an application for mandamus.

Now, if it is open, your Honour, to the Minister to issue guidelines in relation to the criteria that applications must meet before he will exercise his power, it is necessary for the guidelines both to be reasonable and to be consistent with the objects of the legislation and also, in my submission, to be exercised in accordance with appropriate rules of procedural fairness. 

Now, the decision of the Ministerial Interventions Unit is effectively a decision of the Minister.  Bedlington v Chong talks about it as being a decision in advance made by the Minister as to how he will exercise his discretion. 

HER HONOUR:   It is not really a decision in advance as to how he will exercise his discretion but really as to whether or not he will consider the exercise of his discretion, is it not?

MR DEAN: Yes, I accept that, your Honour, that is correct. But the first question, with respect, is not whether or not section 48B(6) has the effect of precluding the constitutional writs. The first question, in my submission, your Honour, is whether or not prohibition should issue in relation to the decision of the Ministerial Interventions Unit. If your Honour is satisfied that there is an arguable case ‑ ‑ ‑

HER HONOUR:   On what grounds?  I mean, I just do not understand this.  You want to prohibit somebody from – well, I really do not understand it.  The operative decision would seem to me to be the decision of the Refugee Review Tribunal.  That is not challenged but that is the operative decision, is it not?

MR DEAN: The operative decision, in my submission, your Honour, is the decisions by the Ministerial Interventions Unit that the applicant did not meet the criteria set out in the Minister’s guidelines to exercise his power under section 48B. This application is not directed, your Honour, to the decision of the Refugee Review Tribunal.

If your Honour is satisfied that the Ministerial Interventions Unit, firstly, is under a duty to afford the applicant procedural fairness in relation to its determination and, secondly, that it has not accorded the applicant procedural fairness, then a prohibition would go in relation to the unit.

HER HONOUR:   I am not entirely sure what that would do.  I am not entirely sure that it is a reviewable decision.  I do not know why there should be a need for procedural fairness for such a decision in the light of subsection (6) and the papers do not suggest that there was a denial of procedural fairness but, rather, that your client had every opportunity to make his submission and did make it by reference to changed circumstances.  Nor do I understand from the papers that there is anything else that he would wish to put as to why the matter should have been referred to the Minister that he did not put.  These seem to me to be all difficulties in your path, Mr Dean.

MR DEAN:   There are a number of questions to be answered there, your Honour.  Firstly, the Ministerial Interventions Unit, in my submission, is determining whether or not an application fits within the Minister’s guidelines in order for the Minister to exercise the power conferred on him by section 48.

HER HONOUR:   But that would not be a decision under an Act, for example, for the purposes of the AD(JR) Act, would it?

MR DEAN: Well, the Minister is the repository of the power under section 48B. He has chosen, your Honour, to – “enact” is not the right word - give effect to guidelines which, on the authority of Bedlington v Chong – if I could perhaps just take your Honour to the passage of the decision of the Full Federal Court in relation to that question.

HER HONOUR:   Yes, I have that.

MR DEAN:   I am just trying to find that passage, your Honour.  What the Court held there was that the guidelines are – this is at page 80, your Honour, paragraph F:

The guidelines constitute the Minister’s determination, in advance, of the circumstances in which he would consider exercising the power. 

And then it goes on to say that:

There is no reason why the Minister should not lay down guidelines –

and so on.  So the guidelines themselves, your Honour, are so ‑ ‑ ‑

HER HONOUR:   Under what provision of the law was that application made to the Federal Court, Mr Dean?

MR DEAN: This was remitted. Your Honour, this application was originally before this Court and there was an order by Justice Gummow that the question in relation to section 48B be remitted to the Federal Court. Justice Beaumont at first instance considered the interrelationship between subsection (6) and subsection (1) and held that subsection (6) applied to cases where the Minister had considered that an application did not meet the “public interest” criteria set out in subsection (1) and so, therefore, there was no compellable duty.

The threshold question for the Minister, according to Justice Beaumont, was the issue of public interest.  If that was decided adversely to the applicant, there was no compellable duty, and that was how Justice Beaumont construed the section.  So the applicant was successful at first instance.  The respondent appealed to the Federal Court, so the decision of the Full Federal Court is an appeal from Justice Beaumont, your Honour.

HER HONOUR:   Yes.  The application to this Court was under 75(v), I take it?

MR DEAN:   Yes, I believe it was, your Honour.  There are some features of Bedlington v Chong which we say at least give rise to a question as to its correctness.  There was no contra dicta in the Federal Court but, of course, that is not necessarily a significant matter but there was no appearance for the respondent, and the authorities that we refer to, your Honour, in relation to a discretion being a compellable duty were not referred to by the Full Federal Court.  That is The Commissioner of State Revenue v Royal Insurance Aust Ltd and also the other case on our amended list of authorities, your Honour, Minister for Immigration and Ethnic Affairs v Wu.  Both of those cases were decided before Bedlington v Chong and neither of them are referred to in the decision of the Court.  Each of those cases are authority for the proposition that in certain circumstances, having regard to the nature of the power conferred and so on, a discretion may be a compellable duty for the purposes of mandamus.

So, we say, your Honour, that there is a question in relation to the correctness of Bedlington v Chong.  It would appear on its face to be inconsistent with the decisions of the High Court in Commissioner of State Revenue and Wu.  It is clear, your Honour, that there is a very real tension between the operation of subsection (1), particularly when one considers subsection (2) which expressly provides that the Minister’s power is to be exercised personally, and subsection (6).

HER HONOUR:   But the power which is conferred by subsection (1) is to determine that section 48A does not apply.  That is the power conferred, is it not?

MR DEAN:   Yes, it is.  The effect of that is that an unsuccessful applicant may make a subsequent application for a protection visa.  Given the nature of the power, your Honour, in our submission, at the very least the Ministerial Interventions Unit, acting as it is in accordance with the Minister’s guidelines, would be required to raise with an applicant any potentially adverse findings.

HER HONOUR:   Why?

MR DEAN:   Because of the nature of the power.

HER HONOUR:   But which power are we talking about?  You see, the power in 48(1) is the Minister’s power to determine that 48A does not apply.

MR DEAN:   Yes.

HER HONOUR:   Now, the power of the Ministerial Interventions Unit seems to be a non‑statutory function that relates to whether the Minister will or will not consider whether to exercise the power.

MR DEAN:   Yes.  But the unit, your Honour, is really ‑ ‑ ‑

HER HONOUR:   So you are not going to get anything about the nature of the interventions unit’s power, are you, from subsection (1)?

MR DEAN:   No, but the Ministerial Interventions Unit must exercise its role by reference to the nature and the objects of the legislation, your Honour.

HER HONOUR:   Why?  I just do not understand that.  The Minister could, it seems to me in the light of subsection (6), come in and say, “Don’t refer any of them to me at all.”

MR DEAN:   Your Honour, that could not occur lawfully, in our submission.

HER HONOUR:   Well then, let us say he comes in and says, “You can refer all those that arrive between Christmas and New Year whose applicants’ initials begin with the letter A”?

MR DEAN:   Your Honour, that, in my submission, would also be an unlawful exercise ‑ ‑ ‑

HER HONOUR:   But why?  The Minister does not have to consider whether to exercise the power.  That is what the statute says.

MR DEAN:   That is true, your Honour, but the statute, in my submission, needs to be construed as broadly as ‑ ‑ ‑

HER HONOUR:   How do you construe subsection (6)?

MR DEAN:   Well, Justice Beaumont was of the view that subsection (6) operated in cases where the Minister had formed the view that it was not in the public interest for him to exercise his power and, therefore, he was under no duty in those circumstances.  The competing argument, your Honour, is that subsection (6) has the effect that your Honour postulated a moment ago, that the Minister can basically say, “I don’t want to hear any cases in relation to this or determine any cases in relation to this”, or impose capricious guidelines.  Now, in our submission, that cannot be correct.

HER HONOUR:   But why cannot the Minister say – and one may for the moment assume that that is what has been done – “I will consider whether to exercise my power only where there are changed circumstances of such a nature that the operative decision would have been different if those facts had been known at the time or arguably would have been different if those facts were known at the time”?

MR DEAN:   Well, it would be open, your Honour, to the Minister to give effect to a guideline to that effect, that is true.

HER HONOUR:   And that would be consistent with subsection (6)?

MR DEAN:   Yes.

HER HONOUR:   Well now, how do we know that that is not what has been done?

MR DEAN:   The guidelines have not been relied on by the respondent, your Honour, and it would be open to you ‑ ‑ ‑

HER HONOUR:   But the applicant’s letter, being Exhibit D, seemed to have some knowledge of them.

MR DEAN:   Yes, the last sentence of the letter written on his behalf refers to the guidelines, that is true.

HER HONOUR:   Yes.

MR DEAN:   I am not in a position to answer your Honour to what extent those guidelines were known to Mr Bitel or how they were referred to the applicant, if they were referred to him at all.  I am simply not in a position to answer that, your Honour.

As far as the respondent is concerned, the guidelines themselves have not been provided to this Court.  Now, it would be open, in those circumstances – and I emphasis “open” – to your Honour to infer that they do not assist their case, otherwise they would have referred to them.

HER HONOUR:   I do not think I would draw any such inferences in light of the fact that it was only, I think, last week that any suggestion in the papers came up about the guidelines, is that not right?

MR DEAN:   I acknowledge that, your Honour.  That is clearly so.

HER HONOUR:   Yes.

MR DEAN:   Just taking up, if I may, your Honour, the point that your Honour was raising in relation to the exercise of the Minister’s power.  Again, this is referred to in Aronson and Dyer at page 588.  It is the last sentence that goes over to 589 where the authors state:

It is simply to recognise that in public law, no repository of a discretionary power can exercise or decline to exercise it on arbitrary or otherwise impermissible grounds.

So the relationship, your Honour, between the nature of the power conferred by subsection (1), the limits, if any, that follow from subsection (6) and the Minister’s duty that arises under subsection (2) are really at the heart of this application.

HER HONOUR:   The Minister’s duty under subsection (2), is that a different duty?  Is that a relevant duty in this case?

MR DEAN:   It says that:

The power under subsection (1) may only be exercised by the Minister personally.

HER HONOUR:   Yes.  There is no word suggesting “duty” in subsection (2), is there, and that is a power to determine that section 48A does not apply?

MR DEAN:   That is true, your Honour, yes, and he must do so personally.  So those questions of statutory construction are at the heart of this application and, of course, at this stage the test to be applied by your Honour is whether or not there is an arguable case.

HER HONOUR:   So, your argument – let me clearly understand this – is that the Minister is under a duty to at least look to consider every application that is made to him to determine whether or not it would be in the public interest to determine that 48A does not apply and, having determined that – well, you go so far as to say that, do you not?

MR DEAN:   No, no, I do not go that far, your Honour.

HER HONOUR:   Could I understand what you say the Minister’s duty is and what you say the interventions unit duty is?

MR DEAN:   If I could answer the second question first, and that is the interventions unit, in my submission, is obliged to accord the applicant appropriate rules – procedures of procedural fairness in relation to its determination.

HER HONOUR:   How do we know that they did not?  We do not know that they did not.  Even if you be right on that, we do not know that they did not.  On the contrary, the letter from Parish Patience suggests that they did.

MR DEAN:   Your Honour, at the very least, in my submission, the applicant would be entitled to be given an opportunity to respond to a potentially adverse finding and be given reasons as to why he does not meet the guidelines.  At the very least, those two procedures ought to be followed to ensure that the application is determined fairly.  Where that has not occurred, in my submission, prohibition is available, coupled with certiorari, and ‑ ‑ ‑

HER HONOUR:   What do you want the prohibition directed to?  To do what?

MR DEAN:   Directed to the Minister to not rely on or give effect to the decision of the Ministerial Interventions Unit.

HER HONOUR:   I do not think that is right.  I think if you analyse it correctly, Mr Dean, you would want prohibition to stop the Minister giving effect to the decision of the Refugee Tribunal.  That is the operative decision.

MR DEAN:   Well, that is a question that I would have to consider, your Honour, because I have to say that we have not approached the application on that basis and ‑ ‑ ‑

HER HONOUR:   But prohibition would avail you of nothing in relation to the Ministerial Interventions Unit’s decision.  It would do nothing.

MR DEAN:   It would prohibit the Minister from giving effect to it and certiorari would quash it.

HER HONOUR:   It still would not get you anywhere without a mandamus.  It would have no effect without a mandamus requiring the Minister to consider whether or not to exercise his power.

MR DEAN:   Yes.

HER HONOUR:   And subsection (6) specifically says he does not have a duty to consider that.

MR DEAN:   In my submission, that is the approach that is the appropriate one, that is, prohibition should be followed by mandamus, and subsection (6) does not have the effect of rendering the Minister immune from mandamus.

HER HONOUR:   Very well.  Well, we will come back then to where this dialogue started to ask could I have your submissions as to how subsection (6) is to be construed.

MR DEAN:   Well, the work to be done by subsection (6), your Honour, is not to render the Minister immune from mandamus and, as identified by Justice Beaumont in Bedlington v Chong, where an application does not meet the public interest, the Minister is not under a duty to consider the exercise of his power under subsection (1) – and, if I could interpolate there, the public interest question may be determined according to guidelines given effect to by the Minister, that is, to the unit.  So, the work that subsection (6) does is to render non‑compellable a decision if made in accordance with procedural fairness that a particular application does not meet the public interest.  That is how we put our case, your Honour, on that question.

The procedural fairness question is obviously central to the application and the nature of the procedures and the way in which they ought to be applied need to be considered by reference to the statutory power in question and it is, in my submission, appropriate for that question to be considered as favourably as possible to the persons to whom the statutory power is intended to benefit and that, of course, are persons who seek to enliven our international refugee obligations.

HER HONOUR:   It is not restricted to those people, is it?

MR DEAN:   Section 48?

HER HONOUR:   It is.  Yes, it is, thank you.

MR DEAN:   The authorities, your Honour, I do not propose to take you to them.  Your Honour is no doubt well familiar with them.  The law has clearly developed to the point where, in my submission, procedural fairness would apply in these circumstances, that is, the determination by the Ministerial Interventions Unit.

They are the submissions in support of the application at this stage, if your Honour pleases.

HER HONOUR:   Yes, thank you, Mr Dean.  I need not trouble you, Mr Lloyd.

In this matter I am not satisfied that there is an arguable case either that the Ministerial Interventions Unit was bound to afford natural justice to the applicant on any question that was raised by his application, nor am I satisfied that there is an arguable case that they refuse to accord procedural fairness to him. Further, I am not satisfied that there is an arguable case that prohibition would serve any useful purpose in relation to the decisions of the Ministerial Interventions Unit. Finally, I am not satisfied if there is an arguable case that mandamus lies in the face of subsection (6) to compel the Minister to consider whether or not to exercise the power under section 48B(1) of the mandamus lies in the face of subsection (6) to compel the Minister to consider whether or not to exercise the power under section 48B(1) of the Migration Act 1858 (Cth).

Accordingly, the application is dismissed.

MR DEAN:   If your Honour pleases.

MR LLOYD:   I would seek certification, your Honour, that this is an appropriate matter for counsel.

HER HONOUR:   Yes.  I will certify in this matter for the attendance of counsel.

MR LLOYD:   Your Honour, does that imply that a costs order in my client’s favour is made?

HER HONOUR:   No.  It implies one has not been made.

MR LLOYD:   Then I would seek a costs order as well, your Honour.

HER HONOUR:   Mr Dean, what do you say about that?

MR DEAN:   Your Honour, it was, in my submission – this is an untested area of the law.  The question of costs is a matter for your Honour.  There is nothing further I can say.

HER HONOUR:   Yes.  Do you really press costs in this case?

MR LLOYD:   My client always presses for costs, your Honour.  In the end, I am not suggesting we will be able to recover them but as a question of principle my client believes he should have an order in his favour.  Whether that is of any use to him at the end of the day.  It does have one consequence:  that the applicant, before returning to Australia, would have to pay cost orders.

HER HONOUR:   Yes.  Well, the normal rule is that costs follow the event and having decided, in my view, that there was no arguable case, I think the normal rule dictates that an order for costs be made. 

So, the order will be application refused with costs, and certify for the attendance of counsel.

The Court will now adjourn.

AT 11.22 AM THE MATTER WAS CONCLUDED