Applicant S190-2002, Ex parte - Re MIMIA

[2002] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 2002

In the matter of -

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

Respondent

Ex parte –

APPLICANT S190 OF 2002

Applicant/Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 19 AUGUST 2002, AT 10.20 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   May it please the Court, I appear for the applicant.  (instructed by the applicant/prosecutor)

MR S.B. LLOYD:   I appear for the Minister.  (instructed by Clayton Utz)

HIS HONOUR:   Is the applicant present at the Court today?

MR PRINCE:   He is, your Honour, and the Court has arranged for an interpreter prior to my involvement in the matter.

HIS HONOUR:   Yes.  Well, the applicant can sit down at the Bar table and the interpreter might come forward.  Do we need to have the interpreter sworn or is the interpreter going to – is the applicant going to give oral evidence or not?

MR PRINCE:   I do not propose that, your Honour.

HIS HONOUR:   So the interpreter is here simply to ensure that the applicant understands the course of the proceedings, is that correct?

MR PRINCE:   Yes, I think that is right, your Honour.

HIS HONOUR:   Well, the interpreter can sit quietly next to him.  Perhaps you might tell the Court your name, please, Mr Interpreter.

THE INTERPRETER:   Sorry, Benjamin Perkis.

HIS HONOUR:   And what is your address?

THE INTERPRETER:   The address is 72 Pitt Street, Sydney.

HIS HONOUR:   And you are an authorised interpreter?

THE INTERPRETER:   Yes.

HIS HONOUR:   In which language?

THE INTERPRETER:   Russian/English English/Russian.

HIS HONOUR:   And is that the language of the applicant in these proceedings?

THE INTERPRETER:   That is correct.

HIS HONOUR:   Yes, very well.  The applicant may sit at the Bar table next to Mr Prince and the interpreter may sit next to the applicant and I would ask the interpreter to explain the matters that arise during the hearing and ensure, so far as he can, that the applicant understands what is going on.

MR PRINCE:   Yes, thank you, your Honour.

HIS HONOUR:   Yes.

MR PRINCE:   At the outset can I apologise to the Court for the lateness of the submissions and the draft amended orders which were faxed through this morning.  My involvement was quite late in the piece last week.  As a result of the lateness, your Honour will see there is an application for an adjournment, but in the event that the Court is not inclined to grant that application, there are matters which are set out in the submissions that go to the substantive issues.  It has not been possible to forward a list to the Registry in time for those documents to be before your Honour, but I have taken some copies of material which I have provided to my friend and which might assist your Honour.

HIS HONOUR:   Yes.  First of all, what is the foundation of the application for adjournment?

MR PRINCE:   Your Honour, the application for adjournment is primarily based on the changed circumstances of the case since the applicant has had access to legal representation.  Your Honour will see that the amended application is quite significantly different from the first application which was filed by the applicant when he was self‑represented.  That is significant for this reason, your Honour.  Effectively the case comes down to a challenge to the departmental officer’s decision not to put the matter forward to the Minister.

HIS HONOUR:   Now, first of all, there is a letter from the Minister which is signed, or appears to be signed, by the Minister personally.

MR PRINCE:   That is correct, your Honour.

HIS HONOUR:   Therefore, some aspect of the applicant’s case went to the Minister personally.

MR PRINCE:   That is correct, your Honour.

HIS HONOUR:   Now, as I understand it, the letter which the applicant wrote to the Minister was construed to be an application under section 417, is it?

MR PRINCE:   Indeed, your Honour, yes.

HIS HONOUR:   And that was the matter that was considered by the Minister personally?

MR PRINCE:   That is correct, your Honour.  There are two matters.

HIS HONOUR:   And then it was also interpreted to be an application to enliven the Minister’s discretion to permit a second refugee application to be made, or a second application for a protection visa, under section 48A, is that correct?

MR PRINCE:   That is correct, your Honour.

HIS HONOUR:   And that is the matter that attracts the ministerial guidelines on matters that should or should not go to the Minister.

MR PRINCE:   Precisely, your Honour.

HIS HONOUR:   So the Minister considered the 417 application but did not consider, so it is said, the 48A and 48B application.

MR PRINCE:   Yes, that is so, your Honour.  That advances on some material which was forwarded to me, at my request, by the solicitors for the respondent.  It is not in evidence before your Honour at the moment.  Unfortunately I do not have a solicitor in this case who can put on an affidavit, but relevantly that material shows a sheet which indicates that a decision has been taken to not refer the 48B ‑ ‑ ‑

HIS HONOUR:   I think I read that somewhere.  I think that might have been acknowledged in the respondent’s submissions in this case.

MR PRINCE:   Yes, I think that is right, your Honour, and it seems to be captured by the letter.

HIS HONOUR:   As I understand it the Full Court of the Federal Court in the matter of Chong 87 FCR 75, is it ‑ ‑ ‑

MR PRINCE:   That is correct, your Honour.

HIS HONOUR:   ‑ ‑ ‑ has upheld as valid the procedures established by the ministerial guidelines.

MR PRINCE:   The principle of the ability of the Minister to implement guidelines in the form of an advanced ‑ ‑ ‑

HIS HONOUR:   I notice that that decision reversed a decision of Justice Beaumont, a very experienced and senior member of the Federal Court.  Did his Honour give reasons in which he indicated that he considered that the Minister could not be exempted from exercising a personal decision by reason of guidelines, that he could not, as it were, disqualify himself from determining the matter reposed in him by Parliament?

MR PRINCE:   Your Honour, his Honour Justice Beaumont’s reasoning turned on a two‑step process, that is, first of all, a requirement that the Minister determine whether or not a public interest existed.  If the Minister did not see a public interest, then the Minister was at liberty to not proceed on the application at all.

HIS HONOUR:   Is Justice Beaumont’s decision reported?  You see in the Federal Court Reports it says it is unreported, otherwise I would have tried to get it.

MR PRINCE:   It is unreported, your Honour, and I have not brought a copy with me that I can provide to your Honour unfortunately.

HIS HONOUR:   As I understand it, Justice Gaudron in two cases has, in effect, accepted the decision of Chong, is that correct?

MR PRINCE: That is correct, your Honour, and there is no dispute from the applicant that if the application were purely directed to compel the Minister to exercise a discretion under section 48B(1), then the application would fail and hence the amended application which is directed at the Minister’s servant. In my submission, the statutory scheme which her Honour ‑ ‑ ‑

HIS HONOUR:   He is not the Minister’s servant.  He is an officer of the Commonwealth.

MR PRINCE:   I am sorry, your Honour, yes.  The officer of the Commonwealth who is working from the Minister’s department.  In my submission, the reasoning of her Honour about the wide range of the nature of the Minister’s discretion ‑ ‑ ‑

HIS HONOUR:   Now, is that the reason for the addition of the name of Mr Henry Lemaniak as the second respondent to the application?

MR PRINCE:   Yes, your Honour.

HIS HONOUR:   Mr Lloyd, did you appear for both respondents?  Do you appear for Mr Lemaniak?

MR LLOYD:   Not at the moment, no, your Honour.

HIS HONOUR:   I notice here I have “for respondent” and the only named party in the application at the moment is the Minister.

MR LLOYD:   That is so, your Honour.

HIS HONOUR:   So I assume that what Mr Prince is doing is asking to add Mr Lemaniak in order to be able to advance this alternative argument and it would seem to me at the moment, if he wants to do that, I would be inclined to allow him to do that and that might necessitate an adjournment if you do not have instructions to appear for Mr Lemaniak.

MR LLOYD:   Those instructions are being sought.  What I was proposing to do, your Honour, was simply make a submission to the effect that the amendment should not be allowed because it would be futile because, for reasons which I can develop, there is no seriously arguable case, even if that formal matter were taken care of.

HIS HONOUR:   You, therefore, oppose the adjournment.  You say the adjournment is futile and you say that I should refuse the application to add Mr Lemaniak as a second respondent?

MR LLOYD:   That is so, your Honour.

HIS HONOUR:   And if he is not added, then the occasion for the adjournment does not arise?

MR LLOYD:   Yes, although I think my friend puts his adjournment more broadly than that alone, but, yes, we say ‑ ‑ ‑

HIS HONOUR:   It does not arise on that basis anyway.

MR LLOYD:   Certainly, your Honour.

HIS HONOUR:   Well, that appears to identify a preliminary question which we will have to address.

MR PRINCE:   Yes, your Honour.  The application for the amendment of Mr Lemaniak ‑ ‑ ‑

HIS HONOUR:   Has that issue, that is to say the suggested jurisdictional or other amenable error on the part of an officer of the Commonwealth in placing a matter pursuant to the ministerial guidelines before the Minister previously been decided by the Federal Court, or by this Court, or considered by either court?

MR PRINCE:   My researches have not revealed that it has been, your Honour.  The matter of Bedlington v Chong separated the issues out.  There was initially an application to the High Court which was remitted under section 44 of the Judiciary Act, but only that part of the application was remitted to the Federal Court which dealt with the principle of whether guidelines could be put in place and, secondly, whether or not the officer could be compelled to ‑ ‑ ‑

HIS HONOUR:   Was that the matter that came before Justice Gaudron, or not, or a different matter?

MR PRINCE:   A different matter.  This is going back to Bedlington v Chong, your Honour.  The matter that came before her Honour Justice Gaudron ‑ ‑ ‑

HIS HONOUR:   So that case, that is to say Bedlington v Chong (1998) 87 FCR 75, began in this Court, did it?

MR PRINCE:   Yes, it did, your Honour.

HIS HONOUR:   That was remitted to the Federal Court, came before Justice Beaumont, he made his decision and then it went up on appeal to the Full Court in the case which is reported as I have indicated, and the Full Court dismissed the application.

MR PRINCE:   That is correct, your Honour, and there are matters which were reserved to the High Court, or which were not remitted, which are more akin, in my submission, to the matters which arise in the amended application.

HIS HONOUR:   And what has happened to those matters?

MR PRINCE:   They do not appear to have ever been determined, your Honour.

HIS HONOUR:   Are they still alive or have they faded away?  I have not heard of them being before the Court.

MR PRINCE:   No, I simply have not been able to find any reference to them being before this Court, your Honour.

HIS HONOUR:   I see.

MR PRINCE:   The respondent on the appeal in Bedlington v Chong did not appear, your Honour, did not appear in the appeal proceedings in the Federal Court.

HIS HONOUR:   Yes.  Now, because your outline arrived late I have not had the chance to read it.  So I will just ask you to sit down and I will read the outline now.

MR PRINCE:   Yes, thank you, your Honour.

HIS HONOUR:   You have a copy of this, have you, Mr Lloyd?

MR LLOYD:   I do, your Honour.

HIS HONOUR:   Yes.  Whilst I am reading this, I will ask the representative of the Registry to check if it can be ascertained what, if anything, has happened to the matters that have been reserved to this Court in the case of Bedlington v Chong in 1998.  So we will see if we can find out whether or not that matter is still alive in the Court.

MR PRINCE:   Yes, thank you, your Honour.

HIS HONOUR:   Just whilst I am reading this, Mr Prince, my understanding is that it is not contested that section 91X was not in force at the time the matters were before Justice Sackville in the Full Court, is that correct?

MR PRINCE:   That is correct, your Honour.  It really bears on the decision which was made after his Honour’s decision.

HIS HONOUR:   Yes, I have now read the prosecutor’s outline of submissions and the draft amended order nisi.  I notice, Mr Prince, in the submissions there is a suggestion that you are picking up the challenge to the validity of the guidelines made by their Minister but I do not see that reflected in the draft order nisi.  Am I misunderstanding something?

MR PRINCE:   The validity of the guidelines themselves are not being challenged, your Honour, no.  If that appears from ‑ ‑ ‑

HIS HONOUR:   So you accept that the Minister’s guidelines are within the power afforded to the Minister to lay down directions as to the matters that will be placed before him personally?

MR PRINCE:   Yes.  In fact, the applicant’s case turns on that.  It is, in effect, an advance exercise of a personal power that the Minister holds

which makes the compliance by the departmental officers with what he puts ‑ ‑ ‑

HIS HONOUR:   So the case is entirely directed at the failure of an officer of the Commonwealth who was purporting to comply with the guidelines to do so in accordance with the guidelines as understood in the light of the provisions of the Act?

MR PRINCE:   Yes, your Honour.

HIS HONOUR:   All right.  For that purpose you appear to need the naming of the officer of the Commonwealth concerned because, as I understand it, in respect of the guidelines your complaint is not as such against the Minister but against the officer for failing to place before the Minister the application pursuant to the guidelines made by the Minister.

MR PRINCE:   Yes, that is right, your Honour, and ultimately if the applicant is successful, all that will occur is that the material will be drawn to the attention of the Minister.

HIS HONOUR:   Now, what is the relevance of the proceedings which have been referred into a Full Court and will be heard in September concerning the validity of supervening migration legislation, if any?

MR PRINCE:   Your Honour, that material has been placed in the submissions and the applicant in abundant caution.  There is nothing in the respondent’s submissions, which were prepared in advance of these matters, which would indicate that reliance had been placed on the privative clause.

HIS HONOUR:   Is that so?  Is that in the respondent’s submissions in this case?

MR LLOYD:   It is not in the respondent’s submissions, your Honour.

HIS HONOUR:   Do I have the respondent’s submissions?  Yes.

MR LLOYD:   I believe so, your Honour.

HIS HONOUR:   I thought the privative provisions were raised in the next case but I did not remember seeing them in this case.

MR LLOYD:   No, your Honour.  We did not raise them because of the form that the previous application was in.  My clients may wish to raise them.  I would be forced today to accept that there is a seriously arguable case in relation to them.  So for today’s purposes I would simply say that your Honour would dismiss the order nisi if you accept that the privative clause did not apply.

HIS HONOUR:   Did apply?

MR LLOYD:   Did not apply.  So giving the applicant the benefit of the doubt on the privative clause, we say he would still fail.

HIS HONOUR:   Well, there is nothing in your written submissions about the privative clauses and, therefore, I would be inclined to deal with the submissions without reference to those clauses.  If they were necessary, then I think I would have to adjourn these proceedings in order to await at least the outcome of the hearing of the proceedings in September concerning the challenge to the constitutional validity of those provisions.

MR LLOYD:   Certainly.  I accept that your Honour can deal with today’s matter without dealing with the privative clauses.

HIS HONOUR:   Very well.

MR LLOYD:   I should say that is not to disclaim the possibility that if an order nisi is granted that my client might then wish to have regard to it, but for today’s purposes ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, presumably you would be entitled either to apply that the order nisi be vacated on a basis that the privative provisions of the 2001 legislation applied and/or to refer to those provisions when the matter was returned before a Full Court of this Court.

MR LLOYD:   That is so, your Honour.

HIS HONOUR:   I think it may be more convenient, just so that I can have the issues in mind, if you were to tell me why you say it is not necessary to adjourn the matter in order to allow Mr Lemaniak, who is not before me at the moment, to be added as a party.

MR LLOYD:   Perhaps I can say, your Honour, I am now instructed that I do have instructions to appear for Mr Lemaniak, but the point remains the same.  The essence of the matter is this.  I understand that my solicitor faxed to the Court a copy of the RRT decision, is that ‑ ‑ ‑

HIS HONOUR:   The which decision?

MR LLOYD:   The Refugee Review Tribunal decision.

HIS HONOUR:   Yes, I have seen the Refugee Review Tribunal decision.  It is a decision of Member Thomson dated 12 July 2001.

MR LLOYD:   That is so.

HIS HONOUR:   I have received that.  I also have before me the judgment of Justice Sackville of 24 September 2001, and the judgment of the Full Court of the Federal Court of 18 February 2002.

MR LLOYD:   Perhaps if I give your Honour an overview of what the respondent’s case will be.  It is simply this, that the Tribunal rejected all of the substantive claims made by the applicant about – he claimed harm because he had knowledge, in the end, of certain corrupt dealings and the Tribunal did not accept that either he had knowledge of those corrupt dealings or that that would be a Convention ground.  Now, on that basis, that was summarised by his Honour Justice Sackville.  We accept that that happened.

HIS HONOUR:   But as I understand it, the point that has now arisen has gone beyond that and the contention of the applicant is that, whether he was believed or not, there has now been a publication in the World Wide Web of his assertions, which themselves become a foundation for fear which activates a necessity that the departmental officer should ensure that that is taken into account in order that the decision of the Minister is an informed and correct one in the exercise of the larger discretion which is given by the Parliament to the Minister.

MR LLOYD:   I accept that, your Honour.  I accept that entirely.  But clause 9 of those guidelines which my friend relies upon as being misinterpreted ‑ ‑ ‑

HIS HONOUR:   I do not have those guidelines, I think.

MR LLOYD:   They are included in his submissions.  Paragraph 20 of his submissions quotes clause ‑ ‑ ‑

HIS HONOUR:   Will I need the guidelines?  I would think I will need them.

MR LLOYD:   My friend has a copy to hand up, I believe.

HIS HONOUR:   Do you have a spare copy?  Would you like me to photocopy them?

MR PRINCE:   No, I have a spare copy for your Honour.

HIS HONOUR:   Very well.  If you hand those up, please.

MR PRINCE:   I have to dismember it, if your Honour will ‑ ‑ ‑

HIS HONOUR:   Whilst you are doing that, let me get the record in order.  The applicant applies to add to the proceedings as a second respondent Henry Lemaniak, an officer of the Commonwealth, alleged to be the officer acting as case officer in the first respondent’s Ministerial Intervention Unit.  Mr Lloyd of counsel appears for the second respondent.  Do you have objection to his being added as a respondent to the proceedings?

MR LLOYD:   Yes, I do, your Honour.

HIS HONOUR:   But you appear for him today to deal with the objection to his being added as a respondent?

MR LLOYD:   That is so.

HIS HONOUR:   Very well.  Well, I have Mr Lemaniak before me and I will hear the objection to his being added as a second respondent.  There has been read before me on behalf of the applicant an affidavit of the applicant which is dated 22 May 2002.  Do you have a copy of that affidavit, Mr Lloyd?  It is a very short document.

MR LLOYD:   I believe I do, your Honour.  Yes, I do, your Honour.

HIS HONOUR:   Is there any objection to the reading of the affidavit?

MR LLOYD:   I would object to what is the second paragraph, your Honour.

HIS HONOUR:   That is to say the one that begins “After some days”?

MR LLOYD:   That is so.  There was no evidence before the officer that that happened, so it could not be relevant to the validity of the officer’s decision.

HIS HONOUR:   Are we speaking about the same matter, the second paragraph of the affidavit of the applicant that I have says:

After some days, but before my Full Federal Court hearing . . . appeared on the Internet.

Is that the paragraph you object to?

MR LLOYD:   Yes.

HIS HONOUR:   But that is speaking of the knowledge of the applicant and of a phone call that he received.

MR LLOYD:   That is so.  But for the purposes of a judicial review application of an officer of the Commonwealth who did not know that he received that phone call.  That was not put before him and it cannot be relevant to the correctness or otherwise of the decision of the officer of the Commonwealth.

HIS HONOUR:   Well, that may go to the weight of what he says, but he says he received a phone call from overseas stating that his name had appeared on the Internet and, in any case, it appears to be common ground that it appeared on the Internet.

MR LLOYD:   I do not dispute that it appeared on the Internet, but if he seeks to rely upon the fact that he got a phone call from other people that they have seen it and somehow to rely upon that as showing error by the second respondent, in my submission, that could not be relevant because the second respondent never knew about the phone call and, in that sense, it is not relevant to any error of the second respondent.

HIS HONOUR:   It may go to the question of whether or not the objective facts of the publication on the Internet, the fact that it has been seen overseas is the kind of matter that should be considered by the officer of the Commonwealth in determining what he will do to advise the Minister to consider, or not consider, the application.  At least, that, as I understand it, is the case that is put for the applicant and at this stage I would not be inclined to reject that paragraph.  The second paragraph of the affidavit of the applicant is objected to but allowed.  Do you object to anything else in the affidavit?

MR LLOYD:   Well, the first paragraph refers to his application – he made an:

application to the Refugee Review Tribunal for refugee status on the grounds of my Chinese ethnicity, association with the military and my access to sensitive military information on the basis of my translation work with the military –

In the end the Tribunal found that that was not his claim.

HIS HONOUR:   Yes, but the affidavit merely says that that is the basis on which he made the application.  The objection to the first paragraph is noted but the paragraph is allowed.

MR LLOYD:   There is no objection to the third paragraph.  No objection to the fourth paragraph, although perhaps I should note, without the need for cross‑examination that the Minister does say that the dates are wrong but ‑ ‑ ‑

HIS HONOUR:   Well, they can be clarified in the course of argument.  I read the affidavit of the applicant and admit that into evidence.  Is there any other evidence that you have, Mr Prince?

MR PRINCE:   No, your Honour.  The only other material are cases, Hansard ‑ ‑ ‑

HIS HONOUR:   No, they are not evidence.

MR PRINCE:   No.

HIS HONOUR:   I also read an affidavit of Rachel Suzanne Francois, solicitor, which is sworn 15 August 2002.  Do you have any objection to that affidavit, Mr Prince?

MR PRINCE:   No, your Honour.

HIS HONOUR:   Very well.  That affidavit is read.  Do you have any other evidence for tender before me, Mr Lloyd?

MR LLOYD:   No, I do not, your Honour.

HIS HONOUR:   I should have asked you, do you wish to cross‑examine the applicant on his affidavit?

MR LLOYD:   No, I do not, your Honour.

HIS HONOUR:   Do you wish to cross‑examine Ms Francois on her affidavit?

MR PRINCE:   No, your Honour.

HIS HONOUR:   Yes, very well.  Do you have any evidence in reply to the affidavit of Ms Francois, Mr Prince?

MR PRINCE: Your Honour, there is material which was provided by the respondent in accordance with the request which contains a copy of the decision of Mr Lemaniak. If I could tender that. It accompanies a report in respect of a section 417 application.

HIS HONOUR:   Show it to Mr Lloyd.

MR PRINCE: Yes, I have done that, your Honour, and I do not press the 417 material but only the material in relation to the decision under section 48B.

HIS HONOUR:   So, have you separated it?

MR PRINCE:   I am sorry, your Honour, my stapling is far too efficient. 

MR LLOYD:   No objection, your Honour.

HIS HONOUR:   I read a document titled “COVER SHEET” signed by Henry Lemaniak, case manager, relating to a “PURPORTED FURTHER APPLICATION FOR A PROTECTION VISA SUBJECT TO A S48A REQUEST FOR MINISTERIAL INTERVENTION” concerning the applicant.  This document is received without objection.  It will be exhibit A1.

EXHIBIT:              Exhibit A1…..Application for a Protection Visa

HIS HONOUR:   Yes.

MR PRINCE:   Your Honour, I have already handed up the guidelines.  Perhaps I should tender those formally.  My friend has seen them.

HIS HONOUR:   Yes.  Is there any objection to the receipt of these guidelines, Mr Lloyd?

MR LLOYD:   No, your Honour.

HIS HONOUR:   Very well. I read the “Guidelines for case managers” relating to “Purported further PV applications subject to s48A and requests for Ministerial intervention under s48B” of the MigrationAct.  This is received without objection.  It will be marked exhibit A2.

EXHIBIT:              Exhibit A2…..Guidelines for Case Managers

MR PRINCE:   That is the evidence of the applicant, your Honour.

HIS HONOUR:   Yes.  What do you say, Mr Prince?

MR PRINCE: Your Honour has the outline of submissions. The case turns on the question of the effect of section 91X and its passage through Parliament and whether or not that was properly taken into account by the second respondent. That will be ultimately a matter of evidence, your Honour, and that question also comes to Wednesbury principles as to the reasonableness of the decision of the second respondent in the face of the parliamentary intention in section 91X.

HIS HONOUR:   Now, all the second respondent did in the memo of 13 March 2002 was to tick the second item, namely that:

The purported further application/request is considered NOT to meet the guidelines.

Do you contest that contention?

MR PRINCE:   Yes, your Honour.  It is my submission that is a manifestly unreasonable conclusion in the face of the material which has been put before your Honour.

HIS HONOUR:   Where is the guideline you say is relevant to the consideration of overseas publication of the name of an applicant for refugee status?

MR PRINCE:   Your Honour, the question of the overseas publication of the decision is a surplus question and if your Honour has the guidelines, at clause 10 of the guidelines:

The Guidelines identify two categories of what constitutes additional information:

and one of those grounds is:

claims of Refugee Sur Place;

That was put before the second respondent in the letter of application made by the applicant/prosecutor set out in the affidavit of the respondent’s solicitor.  In that letter, which is annexure A to that affidavit, your Honour will ‑ ‑ ‑

HIS HONOUR:   This is the letter which is signed by the applicant and addressed to the Minister?

MR PRINCE:   Yes.  It appears with his name but it does not seem to be signed, your Honour, but it ‑ ‑ ‑

HIS HONOUR:   Can I take it that that was a letter sent on behalf of the applicant to the Minister?

MR PRINCE:   Yes, your Honour.

HIS HONOUR:   You are relying on it?

MR PRINCE:   That is what I am relying on, yes, your Honour.

HIS HONOUR:   And it is dated 1 March 2002.

MR PRINCE:   And your Honour will see in the second paragraph of that letter the applicant says:

All the details of my case, together with my real name have been published on the Internet.  This has placed me in significant danger, of imprisonment and possible persecution and also almost certain execution, by the authorities, should I return to Mongolia.

In my submission, that places squarely before the second respondent the issue of sur place and so enlivens clause 10 of the guidelines.

HIS HONOUR:   Tell me more about the status of a claim for refugee sur place.  Where does it derive from?  Is it in the Convention or the Protocol?

MR PRINCE:   Yes, your Honour, it is and it derives from the obligation against refoulement and also, in my submission, as a primary issue under the Convention, that is that there is a well‑grounded fear of persecution on the basis of the material which is published in Australia and the applicant is outside of his country of residence.  That really comes down to an examination of the material that was published by the court.

HIS HONOUR:   It is outside his country of nationality, is it not?

MR PRINCE:   Yes, your Honour, Mongolia in this case.  The applicant’s case is that if one examines the decision of his Honour Justice Sackville and the claims which are repeated in that decision and the identification of the applicant in that decision ‑ ‑ ‑

HIS HONOUR:   Was your client represented before Justice Sackville?

MR PRINCE:   No, he was not represented in either of the Federal Court proceedings, your Honour.

HIS HONOUR:   He was not represented before the Full Court either?

MR PRINCE:   That is correct, your Honour.  Your Honour, in the Full Court ‑ ‑ ‑

HIS HONOUR:   Did he himself ask that his name not be disclosed in the record of the Federal Court at any stage?

MR PRINCE:   No, he did not, your Honour.  As far as I am instructed, your Honour, no, he did not.

HIS HONOUR:   I think he must have mentioned the matter in the Full Court ‑ ‑ ‑

MR PRINCE:   He did, your Honour, yes.

HIS HONOUR:   ‑ ‑ ‑ because Justice Spender refers to the issue at the bottom of page 2 and the top of page 3.

MR PRINCE:   That is correct, your Honour.

HIS HONOUR:   He says:

It is understandably a matter of continuing concern to the present appellant that the matters referred to in that judgment can still be sheeted home to the appellant by virtue of the continued publication of his name in the report available on the internet.

So he must have said something about that to the Full Court at least.

MR PRINCE:   He did, your Honour, yes, but as the Full Court says, that does not raise any basis for review of his Honour Justice Sackville’s decision because, of course, his Honour’s decision was published before the legislation came into effect.

HIS HONOUR:   It is open to a court to use an expedient like the leveler expedient which is used in defamation cases and to simply refer to an applicant in cases long before section 91X of the Migration Act was enacted by an initial or by some other expedient means.  I have done so myself in this Court several times where there was a risk that a person might, if his or her name were published, suffer recriminations because of it.  But normally the person themselves is the person that raises the issue.

MR PRINCE:   Yes, your Honour, and that was not done before his Honour Justice Sackville.  I do not know whether his Honour raised that issue with the applicant.  I could take instructions on that if your Honour requires me to.

HIS HONOUR:   Anyway, I have the evidence before me and it does not refer to the matter except in so far as it is touched on in the judgment of the Full Court.  So what is your contention, that because of the reference in paragraph 10 of the guidelines identifying two categories that constitute additional information, namely, “claims of Refugee Sur Place”, that by reason of that fact and the content of the second paragraph of the letter of 1 March of the applicant to the Minister that this should have enlivened the decision of the officer handling the case, the second‑named respondent, to refer the matter to the Minister for his personal decision?

MR PRINCE:   Yes, your Honour.

HIS HONOUR:   And that the failure to do that constitutes, do you say, an error of jurisdiction which attracts the jurisdiction of this Court to issue a constitutional writ?

MR PRINCE:   Yes, your Honour, it does, in my submission.

HIS HONOUR:   What is the error of jurisdiction?

MR PRINCE:   The officer has failed to exercise a public duty, that is of a duty which is imposed upon him by the guidelines.

HIS HONOUR:   Now, the Minister is relieved of a duty by certain provisions in the Act, is he not?

MR PRINCE: That is correct, your Honour, he is, by section 48B(6):

The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.

HIS HONOUR:   Yes.  Is there any similar provision in relation to officers of the Commonwealth advising or serving the Minister’s needs in this respect?

MR PRINCE: There is not, your Honour. Indeed, in section 48B(2) the Act makes it clear that:

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

The role of the departmental officers, in my submission, and as set out in Bedlington v Chong, is to implement those guidelines because those guidelines represent an advanced determination by the Minister as to when or when he will not consider an application.

HIS HONOUR:   Yes.

MR PRINCE:   So the situation is, your Honour, that there is a filtering process which is predetermined by the Minister and which can only be predetermined by the Minister and, in my submission, that allows no exercise for discretion on the part of the departmental officer in complying with the guidelines in determining whether or not to bring matters to the attention of the Minister.

HIS HONOUR:   Now, has the status of refugee sur place been considered by any court in Australia?

MR PRINCE:   Your Honour, it has been considered.  The case of W396/01 v Minister for Immigration and Multicultural Affairs ‑ ‑ ‑

HIS HONOUR:   How will law students in the future remember these cases?

MR PRINCE:   Yes, no names at all, your Honour, but the universal citation is [2002] FCAFC – which is the new universal citation – 103.  I have a copy of that which I can hand to your Honour, if that assists.

HIS HONOUR:   Yes.

MR PRINCE:   It is the latest ‑ ‑ ‑

HIS HONOUR:   Whose decision is this?

MR PRINCE:   It is a decision of the Full Court of the Federal Court, your Honour.

HIS HONOUR:   Thank you.  I am looking at the decision in W396 of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 455.

MR PRINCE:   Your Honour, that case also involved an applicant who had been involved in the military, although the distinction is that in that case the Refugee Review Tribunal accepted that the applicant was the recipient of highly sensitive military information, whereas in the present case there is some doubt about that on the decision of the RRT.

HIS HONOUR:   Of the findings of the Tribunal?

MR PRINCE:   Yes, although the initial decision‑maker did accept that the applicant had received some military information.  The present case involved a refugee from Iran who initially fled the country on the basis of his understanding that one of his university lecturers with whom he had been associated had been detained.  It later turned out that there had been an error and that that university lecturer had not been detained but another university lecturer with whom he was not associated had been detained.

This is not an application under section 48B because a further application for sur place was made during the course of the existing application and dealt with in a parallel way. It is an appeal from the Refugee Review Tribunal on the basis of that the Refugee Review Tribunal erred in failing to deal with this sur place issue as a separate matter. At paragraph 31, at page 13, the Full Court notes that:

The Tribunal did not accept the appellant’s claim that he would be suspected of having divulged military information while abroad, the reason being that the appellant had left the country twice before (to travel to Syria and Turkey) and had returned on those occasions without incident.

Then at page 14, paragraph 33, the Full Court notes that:

the Tribunal asked itself a separate and distinct question, namely, would the fact that he had left the country arouse suspicion from the Iranian authorities and lead to persecution having regard to his earlier employment?  The Tribunal failed to ask itself, as it was obliged to do in assessing the appellant’s sur place claim, whether in all the circumstances the appellant had a well founded fear of persecution for a Convention reason arising from events occurring after the appellant’s departure from Iran?  If it had asked itself this question, it would have progressed from considering the appellant’s claims individually to considering whether the interplay of the circumstances, including the interview with ASIO to which no reference was made –

by the Tribunal but which was placed before the Tribunal –

placed the appellant in a position of risk.  In failing to ask the right, question, the Tribunal fell into error.

Your Honour, in my submission, it is clear from that passage that a sur place claim is a claim which needs to be assessed on its own and may give grounds for a well‑founded fear of persecution for a Convention reason arising from events occurring after departure. Some matters were considered by the Refugee Review Tribunal in the present case which occurred after the applicant had – or in respect of the applicant’s status, having left Mongolia, however, for obvious reasons the publication of the Federal Court’s decision was not considered. The presence of section 48B in the Act, your Honour ‑ ‑ ‑

HIS HONOUR:   If one looks at the guidelines under the heading on page 3, “CLAIMS OF REFUGEE SUR PLACE”, they appear to be dealing with the case of a change of country information, not to matters that are relevant to the particular application of the applicant.

MR PRINCE:   In respect of subparagraph (i), that is correct, your Honour.  In respect of subparagraph (ii), which appears to be within the same section, “Circumstances arising in Australia”, that is a basis that the applicant would rely upon here.

HIS HONOUR:   But that in turn is relating to their behaviour in Australia in taking part in political and other activities, is it not?

MR PRINCE:   Well, the words “political” do not occur before “activities”, your Honour, and there is certainly the provision at the third dot point of 13, where the applicant shows that they have “been the subject of publicity”.

HIS HONOUR:   Yes.

MR PRINCE: Your Honour, the Parliament certainly has taken the view that publication by the Federal Court, or by any court, of details of names of the applicant in refugee matters can give rise to a fear of persecution and that is the reason, in my submission, for the enactment of 91X of the Act.

HIS HONOUR: Section 91X, is it?

MR PRINCE:   Yes, your Honour.  That is the non‑publication provision.

HIS HONOUR:   This is the new provision?

MR PRINCE:   Yes, which was in force prior to the second respondent making his decision.

HIS HONOUR:   Yes, but that is addressed not to the second respondent but to the High Court, the Federal Court and the Federal Magistrates Court.

MR PRINCE:   That is right, your Honour, however, the ‑ ‑ ‑

HIS HONOUR:   Do you rely in any way on the statement that the decision of Justice Sackville and the Full Court were updated in some fashion on the Internet after the date on which section 91X came into force?

MR PRINCE: Certainly we rely on the fact that it is still present on the Internet and seems to have been updated on the face of the document on 28 September, which is the day of the gazettal of section 91X, although not the date of operation. The significance is that the debate had occurred in the Parliament and the explanatory memorandum had been promulgated and the legislation had been promulgated and when the second respondent came to determine whether or not a sur place claim existed, in my submission, he ought to have had regard to the intention of the Parliament in determining whether or not a sur place claim arose or whether the matter should be referred under section 48B.

HIS HONOUR:   Does this not have something in the nature of a bootstraps argument, that every applicant who has been the subject of any proceedings in any court up until now who has not himself or herself made application that the name should suppressed or substituted by initials will now be able to come along and say that this constitutes an error on the part of officers of the department in failing to put before the Minister personally applications to take that matter into consideration?

MR PRINCE: In my submission, your Honour, that would be a closed period. The basis of my submission is that when considering the application under 48B the official should have regard to the intention of the Parliament. The second reading speech for section 91X was on 28 August 2001, your Honour. It can be assumed that the Federal Court ceased publishing names on 1 October when the section came into effect, which would leave a relatively short closed period, in my submission, for this submission to be made in respect of matters which should have been taken into account by the official.

HIS HONOUR:   Yes. Well, your case is that the Minister acted in accordance with the powers under the Act, or consistently with the Act, to make the guidelines. The guidelines refer to the position of refugees sur place; that they direct attention to that consideration as an additional matter of information that may enliven the requirement that the Minister consider the matter personally; that relevant to that consideration is whether within Australia an applicant has been subject to publicity; that the present applicant, by reason of the procedures of publishing court decisions, has been in Australia subject to such publicity; he himself has been contacted by someone overseas saying they have seen it; and, in any case, we know that the Internet which carries the single judge matter and the Full Court matter are available to the whole world; and that on that footing the guidelines were enlivened, the matter could not simply be dismissed by the

officer, being the proposed second respondent, on the basis that the matter did not require consideration by the Minister and that the failing here is of the proposed second respondent in enlivening the consideration of the matter by the Minister and that the guidelines do not put these outside the considerations that the Minister has to consider and that this amounts to a fundamental non‑application of the provisions of sections 48A and 48B and that this a reasonably arguably point that has not previously been considered by this Court and that it should be considered.  That will enliven the issue of the recent legislation, but do I understand correctly how you are putting your case?

MR PRINCE:   Precisely, your Honour, with one caveat and that is that clause 9 of the guidelines, in my submission, require any applications which contain additional information, which, in my submission, has been defined in clause 10, to be referred to the Minister.  So there is a direction that once that is made out ‑ ‑ ‑

HIS HONOUR:   But the applicant did know, at least during the consideration of the matter before the Full Court, of the fact that his name would be published.

MR PRINCE: That his name had been published, yes, your Honour. That the initial application had not been finally determined at that stage, it was still subject to the appeal process. So the question of an application under section 48B, your Honour, in my submission, would not have arisen at that point.

HIS HONOUR:   Yes, all right.  Anything else?

MR PRINCE:   No, your Honour.

HIS HONOUR:   Good.  Well, Mr Lloyd, why is that not a reasonably arguable case?

MR LLOYD:   Well, your Honour, turning to my friend’s order nisi, he relies upon, under paragraph 1, three grounds.  The first is that:

The Second Defendant failed to properly construe the duty imposed –

by the guidelines.  There are no reasons in this case and no obligation to give reasons.

HIS HONOUR:   As I understand it, the real complaint is that he failed to consider and decide – in accordance with the guidelines, that he failed to turn his attention to the guidelines for which it is said some evidence is provided by the fact that he simply ticked the box, that:

The purported further application/request is considered NOT to meet the guidelines.

So the suggestion is that in ticking that box either he made such an unreasonable decision as would attract constitutional intervention or that he simply failed to make a decision because he did not address himself to something which he had to consider under the guidelines.

MR LLOYD:   I understand how the case is put, your Honour, but, in my submission, that document is evidence, if anything, that the officer did have regard to the guidelines.  His letter himself says that he had regard to the guidelines and, to put it as succinctly as I can, the guidelines only require the matter to be referred to the Minister if it appears to the officer that the new claim is Convention related and would enhance the applicant’s chances of success of the claim.

HIS HONOUR:   But there was a new factor, was there not, and that was the Internet publication?  This applicant says that if he were returned to Mongolia there is a real chance that he will be executed as a result of the fact that the statements which he made in the hearing have been published on the Internet.  The ordinary litigant would not know that that was going to happen, but it does happen and it is beneficial, normally, that it does happen, but it just presents a particular consideration in this case.

Now, there is nothing on the document which is ticked by the proposed second respondent which indicates one way or the other that he has given thought to that and it does seem to be a matter which is raised, or at least arguably raised, by the Minister’s guidelines.

MR LLOYD:   The natural inference, in my submission, your Honour, is that, it having been raised in his letter, the officer did have regard to it and reached the conclusion, which is the obvious conclusion, that the publication would not have had an effect for either a Convention reason or enhancing the applicant’s claims.  These are both matters within the purview of the officer to assess.  It cannot be said that just because there is a publication of his claims – that the publication itself is in very summary form and says that the claims were all rejected by the Tribunal.

HIS HONOUR:   Let us have a look at what Justice Sackville says, because that appears to be what he was complaining about when he wrote to the Minister and what he is now complaining was not taken into consideration in determining to place the matter before the Minister.

MR LLOYD:   The relevant paragraphs are paragraphs 5 and 6 and we would say also paragraph 10.

HIS HONOUR:   Just let me read those.  Yes, I have read those.

MR LLOYD:   And the thrust of that is that his claim has changed to be one of having had knowledge of corruption, of corrupt transactions.  That in itself suggests no Convention‑related basis.  It is just knowledge of a crime.  And that he fears harm from people who know about the crime, and that is certainly what he said at the Tribunal as well, that the people involved in the crime – he thinks that some people involved in those corrupt transactions have been killed and he considered that they had been killed by other people involved in those corrupt transactions.

So one can see that he might perceive that he has a fear but none of that suggests that it is for a Convention reason and none of it suggests that the publication of that would necessarily enhance his claim to a sur place claim, at least, in my ‑ ‑ ‑

HIS HONOUR:   But may it not be arguable that what he is contending is that he has a well‑founded fear because he is a member of a particular social group, namely those who worked in the Soviet army and had knowledge of State secrets and the misuse of the power that came during the period of perestroika leading to corruption, that this is a reason for his fear that has not been considered by the official in deciding whether or not to place the matter before the Minister for the Minister’s personal decision.

MR LLOYD:   With respect, your Honour, we cannot say that it was not considered.  What we know is that it was considered.

HIS HONOUR:   Well, it is a very enigmatic form.  It simply says:

The further application/request is considered NOT to meet the guidelines.

But the guidelines make express reference to supervening publicity within Australia and there is no indication that that particular aspect has been given any consideration in this case.

MR LLOYD:   But your Honour seeks to draw an inference from the fact that there is no reference to it, but there is no obligation.  The form itself does not include any space to include reasons and there is no obligation to give reasons, in my respectful submission.

HIS HONOUR:   Is this not then self‑executing?  The officer simply says that it does not meet the guidelines and that can never be considered by a court, even though he is an officer of the Commonwealth subject to the requirement of the law, which in this case is an obligation to consider whether to put the matter before the Minister.

MR LLOYD:   I do not say that it is beyond the jurisdiction of this Court to consider it.  What I say is that it is not seriously arguable that the Court could draw an inference that these matters which my friend says were ignored by the officer – in my submission, the clear inference is that they were had regard to and it is reasonably open for the officer to either think, as your Honour put it, that that group of people are not a particular social group, or that it does not go to a Convention reason, or that it would not otherwise enhance his claims.

Now, these are matters under the guidelines within the purview of the officer.  It has appear to the officer to be a Convention reason.  If it has not appeared to the officer to be a Convention reason, then that would be enough.  My friend is never going to get the evidence to substantiate a claim that the officer did not have regard to the things he asserts the officer did not have regard to.  So in terms of meeting the standard for an order nisi, in my submission, it will not get to the seriously arguable case.  The inference should not be drawn that it is so unreasonable that no reasonable decision‑maker could have reached that conclusion ‑ ‑ ‑

HIS HONOUR:   That means effectively that every time an officer of the Commonwealth ticks box two, that that matter, although within the jurisdiction of this Court, can go no further because it is self‑fulfilling.  He says that he has considered the guidelines.

MR LLOYD:   That is the difficulty of the lack of – it has been well considered by this Court that in many cases where there is no obligation to give reasons it will be virtually impossible for someone to make out their claim unless there is, for example, a natural justice point or whatever, which is not raised in this case.  There is nothing unusual about that.  The only unusual thing is that there is no obligation to give reasons.  That is in a context, however, in which there is no obligation for the Minister even to consider these applications.

So it is not an exceptional or unusual outcome.  It would seem to be the intended outcome that the Minister is given a discretion to grant, as it were, seven days extra for someone to make an additional protection visa application, but has absolutely no duty, in any circumstance the legislation says, to do so and it is consistent with that that he can create guidelines which give a very broad margin of discretion, or at least discretion in the sense of determining the relevant issues, to officer of his department.

So, in my submission, one reason why this application should not be granted is simply that the applicant will not be able to make out a case of unreasonableness because it is quite reasonable for an officer to draw the conclusion under the guidelines that the publication of Mr Justice Sackville’s reasons would not show a Convention‑related fear or enhance his claim within the determinative clause 9.

In addition, I should also draw the Court’s attention to the question of the relief.  First of all my friend seeks relief by way of prohibition against the first respondent:

from taking any steps to implement or in reliance upon the effect of the decision of the Second Respondent.

Because there is no duty to even make a decision under section 48B, there are no steps that are dependent upon the decision in any way. The Minister’s obligations are not dependent upon this kind of decision and, as a consequence, there is no scope to suggest that there is any jurisdictional error involved in this matter. The Minister can still, subject to any other visas the applicant might be entitled to, detain the applicant and remove him from the country irrespective of the decision under 48B.

In relation to the second form of relief, the applicant not only seeks an order in the nature of mandamus to suggest that the decision has not been exercised, but also one, in effect, compelling an officer to make a decision in favour of the applicant. There is nothing in the guidelines to suggest that this Court can compel an officer to make a particular decision and if all the applicant wants is another opportunity to make a submission, there is no limit on the number of times he can apply under section 48B. So if he wanted to put together a better case, paint a more colourful picture, make claims about particular social groups which your Honour has suggested but was never included in the letter – indeed, in my submission, the letter to the respondent barely raises section 48B at all.

It was an application really, in substance, under section 417 of the Act to have a visa granted on humanitarian grounds. That was, in fact, considered – well, I should not say it was, in fact, considered personally. It went to the Minister and the Minister signed the letter indicating that he had chosen not to deal with that matter and the Minister made that decision in light of the knowledge about the claims about the publication of the letter.

So we are in a context in which the relief sought, in my submission, is not available in any event.  The prohibition cannot lie because no power of the Minister to detain or remove the applicant is dependent upon a 48B decision.  In my submission, the Court cannot compel the Minister ‑ ‑ ‑

HIS HONOUR:   As I understand it, the writ of prohibition is ancillary to the issue of the writ of mandamus to the second respondent.  That the writ of prohibition is to ensure that pending the decision that is made on the return of the matter to the second respondent to act in accordance with the law that the Minister will not take any action to deport the applicant pursuant to the first and, as it is posited, invalid decision.  That is what I understand the purpose is, to, as it were, hold the position.

MR LLOYD:   I did not understand it that way but, in my submission, that should be interlocutory injunctive relief and not prohibition in terms of final matter.  But moving then to the substance.  If the Court cannot compel an officer to refer it to the Minister, which, in my submission, the Court cannot do because the guidelines provide no suggestion ‑ ‑ ‑

HIS HONOUR:   No, but I think what is suggested – I do not know whether the ground expressed this adequately, but as I understand it, what is alleged is that on the footing of this document, exhibit A1, I would draw an inference that no consideration has been given or no reasonable consideration has been given to the guidelines applicable to this case and that the matter would be returned to the officer, or an officer, to give consideration to that matter and, in the light of that consideration, to return the matter – either to decide that the matter should go to the Minister or not go to the Minister.

MR LLOYD: I understand that, your Honour, but there is nothing in the Act which requires the Minister to do anything pending such an application, so ‑ ‑ ‑

HIS HONOUR:   Well, there may be nothing ‑ ‑ ‑

MR LLOYD:   ‑ ‑ ‑ there would be no basis for interlocutory relief because ‑ ‑ ‑

HIS HONOUR:   I do not know about that.  The Minister is subject to the law.

MR LLOYD:   I accept that, your Honour.

HIS HONOUR:   If, in fact, the conclusion is, through no fault of the Minister, that the matter never got to the Minister because the second respondent did not give it reasonable consideration, then the requirement would be that the Minister does not take any steps on the footing that the matter has proceeded according to law, but hold the matter in the position that it is at the moment pending the determination by the officer in accordance with law and in accordance with the guidelines.

MR LLOYD:   Perhaps if I put it to your Honour in this way.  If we turn back to the position prior to 14 May when the officer wrote the letter, there was nothing at that point which would have prevented the Minister from removing the applicant.

HIS HONOUR:   That might be so, but the matter is now before the Court.

MR LLOYD: The mere fact that he put an application – well, I accept that, your Honour, but that does not change the obligations on the Minister in terms of his duties under the Act to remove the applicant.

HIS HONOUR:   No, but the suggestion here is that the Act has not been fulfilled, that there has not been a proper consideration of the matter by an officer preliminary to the determination of the Minister and that, therefore, the Minister, through no fault of the Minister, has not had the opportunity of considering the matter, if it were a matter that should go to the Minister personally.

MR LLOYD:   I understand that, your Honour, but that is not a different position than the position on 13 May.  That was a case where an application had been made; it had not been finally resolved; the matter may or may not have been referred to the Minister; and yet other officers of the Minister could have taken lawful action to detain and remove the applicant.

HIS HONOUR:   Well, they could have, but they did not and the applicant is now an applicant in this Court and if an order nisi is granted, the Court would take steps to ensure that it was not futile. The suggestion is that that should be done by a writ of prohibition, and it is commonly done by a writ of prohibition. The alternative would be to issue a constitutional injunction, and that can be done too and that is also commonly done. It is not at all uncommon in these matters, where orders nisi are granted, that some relief, sometimes by way of prohibition and injunction, both being writs that are named in the Constitution, are issued to the Minister to hold the position pending the consideration of the matter by the Court.

MR LLOYD:   I accept, your Honour, that is commonly the case in cases where the Minister’s power is, in fact, affected by the decision which is under challenge in this Court, so if ‑ ‑ ‑

may not make a further application for a protection visa while in the migration zone.

. . .

(2)  In this section:

application for a protection visa includes:

(aa)  an application for a visa, criterion for which is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

. . .

(b)  an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol –

And s 48B provides:

(1)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day on which the notice is given.

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

. . .

(6)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.

The Ministerial guidelines

The Minister has issued guidelines to assist in the implementation of these provisions and presumably to ensure that they are applied consistently within the department. No contest was raised as to the power of the Minister to issue such guidelines. Nor was it suggested that the guidelines, as issued, were contrary to the provisions of the Act. I will assume that such concessions were properly made: cf Bedlington v Chong (1998) 87 FCR 75.

The guidelines were tendered before me. They permit certain applications to be placed before the Minister personally. Others they permit, in effect, to be diverted by an officer of the department, thereby sparing the Minister of any need personally to consider such applications. In such a field of administrative decision‑making, with a large number of applications, the course that has been adopted is perhaps understandable and arguably contemplated by s 48B(6) of the Act. In any case, it is provided for in the guidelines. Relevantly, the guidelines state (with emphasis added):

The purpose of these Guidelines is to provide directions for case managers when considering whether to forward to the minister cases where he/she may wish to consider using non‑compellable and non‑delegable power to allow a further application for a protection visa to be made.

. . .

10.  The Guidelines identify two categories of what constitutes additional information:

·     claims of Refugee Sur Place; or

·     other new claims provided by the applicant (which may or may not have been known to the applicant during consideration of the previous protection visa application)

CLAIMS OF REFUGEE SUR PLACE

(i)  Changed Conditions in the Country of Origin

11.  Clients may claim that changes in the country of origin have occurred since consideration of the previous application which enhance the applicant’s chances of making a successful claim under the Refugees Convention . . .

(ii)  Circumstances arising in Australia

13.  Where the applicant provides evidence that they have:

·     expressed views;

·     been involved in activities; and/or

·     been the subject of publicity;

which may jeopardise their safety in the country of origin for a Convention reason, since ‘final determination’ of the previous application for a protection visa, this needs to be considered in light of:

·     whether such activities are likely to have come to the attention of the authorities in the claimant’s country of origin; and

·     how they are likely to be viewed by those authorities.

. . .

20.  CASE MANAGERS SHOULD NOT ENGAGE INA COMPLETE ASSESSMENT AND DECISION AT THIS STAGE, AS AN APPLICATION HAS NOT BEEN VALIDLY MADE.  However, they should ensure that their consideration is consistent with Australia’s international obligations to prevent refoulement.

The departmental consideration of the request

The only evidence that the applicant proffered to indicate how the relevant officer had made the decision affecting him was a printed file note dealing with his case.  By this, it appears the applicant’s application to the Minister was considered by an officer in the Ministerial Interventions Unit of the department.  Relevantly, this document, which was admitted as exhibit A1, reads:

The Manager
Ministerial Interventions Unit

I have found that:

¨ The purported further application/request is considered to meet the guidelines and a submission to the Minister will be prepared as soon as possible.

OR

þ The purported further application/request is considered NOT to meet the guidelines.

OR

¨ The purported further application/request is not subject to the s48A bar as the previous Protection Visa application was not a valid application in the context of the judgment in MIMA vs Applicant A.

Henry Lemaniak   22.3.02
(Case Manager)           (Signature)          (Date)

From this exhibit I am prepared to infer that Mr Lemaniak is the officer who considered the applicant’s application and made the decision there recorded.  The applicant submitted that this provided a sufficient evidentiary foundation for the grant of an order nisi.  He argued that it should issue in order to permit a Full Court of this Court to consider his application.  Reference was made in the papers to the applicant’s fear if he were returned to Mongolia and his contention that, through the Internet, he was now known there to be a person who had claimed refugee status in Australia by reliance on grounds referring to secrecy, national security, high level corruption and the like.

Analysis of the sufficiency of evidence

In repeated decisions of this Court it has been made clear that the constitutional writs, and associated relief, are not available to allow a merits review of ministerial or administrative decisions or decisions of federal courts:  eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271‑272, 291, 293. Relevantly to this case, this includes the decisions of the delegate of the Minister, of the Tribunal, of the primary judge in the Federal Court or of the Full Court of that court. Nor are such writs available to allow a merits review of a decision of an officer of the Ministerial Interventions Unit of the department, such as Mr Lemaniak. A constitutional writ under s 75(v) of the Constitution is only available for what are described as jurisdictional errors – errors going to the authority and power of the decision‑maker to do what was done: cf Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 208 [31], 226‑230 [78]‑[89]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 131 [132], 133‑134 [137]‑[141]. Although I have myself favoured a broader view, I am obliged at the level of this application to conform to the approach of the Full Court before whom any order nisi granted by me would be returned.

The applicant did not claim any breach of the rules of natural justice (a fertile source of jurisdictional error).  He confined his application essentially to the ground that there was no sufficient evidence that Mr Lemaniak had properly addressed his attention to the matter to be decided by him.  Alternatively, he contended that Mr Lemaniak’s decision, in the circumstances, was manifestly unreasonable in the sense explained in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and the cases in this Court that have applied that principle. I will assume that the Wednesbury principle applies to the availability of the constitutional writs, although it was developed by the common law long after the Constitution was adopted: cf Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 40‑41; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649‑650.

Under current doctrine it is not incumbent on an Australian official at common law, deciding even a matter so serious as a decision affecting an application for refugee status, to provide the reasons for that decision:  see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667. The decision in Osmond’s Case reversed a contrary conclusion in which I had participated in the New South Wales Court of Appeal:  Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447. Again, at this level of decision making, I am obliged to conform to the approach of the Full Court of this Court until it is changed. No submission was made to me that the decision of this Court in Osmond was wrong:  cf Mukherjee v Union of India [1990] Supp 1 SCR 44; Baker v Minister for Citizenship and Immigration [1999] 2 SCR 815; Stefan v General Medical Council [1999] 1 WLR 1293 . No statutory obligation was suggested that imposed a duty on Mr Lemaniak to provide reasons for his decision in more detail than appear in the document that he ticked and signed.

Upon this footing I find it impossible, in the circumstances, to say that, on its face, the document (exhibit A1) sufficiently establishes such an unreasonable decision by Mr Lemaniak that it can be said that no reasonable decision‑maker in his position could have made such a decision.  The document indicates that the decision‑maker had the Minister’s guidelines in mind.  Indeed, I would infer that he had the guidelines before him.  These refer expressly to claims by refugee applicants sur place.  They also refer to risks that may have arisen since an earlier decision that applicants within Australia have been the subject of publicity that might have come to the attention of authorities in their country of origin so as to jeopardise their safety if they were returned there. 

There is therefore nothing on the face of the documents to lift this case into the class of Wednesbury or “manifest” unreasonableness.  Nor can it be said that the documents disclose a reasonably arguable case of a failure on the part of the official to consider relevant matters in reaching the decision or of taking into consideration irrelevant matters going to jurisdiction or power.  I would infer that Mr Lemaniak had before him the applicant’s letter to the Minister making his assertions and his request that initiated the involvement of the Ministerial Interventions Unit.  This squarely referred to the concern about publicity through the Internet.  It is for the applicant to provide an evidentiary foundation for the relief he seeks.  In another case, with different facts, the inferences about manifest administrative unreasonableness might be different.  But on the basis of the evidence and materials propounded in this matter, I am not convinced that the applicant has established a reasonably arguable case.

The applicant argued that the insertion in the Act, since his hearings in the Federal Court, of s 91X forbidding courts, including this Court, from naming applicants for refugee status indicated a high legislative purpose of the Australian Parliament of safeguarding the identities of refugee applicants in Australia whose names would otherwise be published on the Internet to the world at large in the course of publishing court decisions. However, as the Full Court of the Federal Court pointed out, the section was prospective in its operation. It was always possible for a court to use expedients to disguise the names of applicants. I have done so myself before s 91X came into force: see, eg, Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 75 ALJR 808 at 809 [2]. The Full Court in the present case did so by naming the applicant by identifiers and not by name. The naming of, and references to, the applicant before the single judge were limited. No application was made before his Honour to disguise the applicant’s identity. The findings made by his Honour are not materially adverse to Mongolia. There was no breach of Australian law in what occurred.

Conclusion and refusal of adjournment

In the foregoing circumstances the application to join Mr Lemaniak as a second respondent must be refused.  In my view, it would futile to join him.  I would not grant any relief against him.  I therefore dismiss that application.

When the applicant saw the way that the wind was blowing in this respect, an application was made, virtually at the close of addresses, for an adjournment of the hearing of this application to permit further efforts to be made to enlarge the evidence that might be available to the applicant to found relief.  Such a late application does not succeed.  This case was argued in full.  It should be decided by the Court on the basis of the evidence adduced on the return of the application.

Necessarily this decision does not restrict any further application which the applicant may make to the Minister, nor any further consideration of the matter by the department or the Minister personally if that course is decided.  Even now, such a fresh application is available to the applicant, as counsel for the Minister properly acknowledged although the Minister has no duty to consider whether to exercise his powers.  In saying this, I do not, of course, reflect on any decision that might, or should, be made in the circumstances.

Orders

In the light of my conclusions, it is unnecessary for me to consider the effect, if any, of the privative provisions introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and cognate legislation, enacted since the case was decided by the Federal Court. I express appreciation for the assistance that I received from both counsel in the determination of the application. The application for an order nisi is refused.

Does the Minister ask for costs?

MR LLOYD:   Yes, your Honour, and I would also ask the Court to certify for counsel.

HIS HONOUR:   Is there any reason why costs should not be ordered?

MR PRINCE:   No, your Honour.  I do not put any submissions on the point.

HIS HONOUR:   The application is refused.  The applicant must pay the Minister’s costs.  I certify for the appearance of counsel in chambers.

Call the part‑heard application.

AT 2.24 PM THE MATTER WAS CONCLUDED