Applicant S275-2001 v MIMA

[2002] HCATrans 365

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S295 of 2001

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

JI DONG WANG

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 AUGUST 2002, AT 10.46 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear for the appellant.  (instructed by the Australian Government Solicitor)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR M.R. SPEAKMAN, for the respondent.  (instructed by Stuart & Mills)

GLEESON CJ:   Yes, Mr Basten.

MR BASTEN:   Your Honours, in this matter the respondent has provided, I think, a supplementary volume of materials.  I do not know how the Court wishes to deal with it.  We have no objection to your Honours having and using that material.  Is it convenient if we simply treat it as part of the materials before the Court?

GLEESON CJ:   Yes.  I notice – this may also be in the other materials – but on page 14 there is a reference to the orders made by the Federal Court on 10 November 2000.  Do you see that?

MR BASTEN:   Yes, your Honour.

GLEESON CJ:   At line 40 to 45 there is a reference to order 4.  Do you see that?

MR BASTEN:   Yes.

GLEESON CJ:   It says:

In the event there is a dispute over the constitution of the Refugee Review Tribunal that is to determine the matter the parties have liberty to apply –

What is “a dispute over the constitution of the Refugee Review Tribunal”?  A dispute between whom?

MR BASTEN:   That was ambiguous, your Honour.  As it turned out, liberty to apply was sought and further orders made in exercise of that liberty in circumstances where the Principal Member had sought to reconstitute the Tribunal for the purposes of further consideration of the matter.

HAYNE J:   Further consideration or reconsideration?

MR BASTEN:   Your Honour, I am not sure whether there is a difference, your Honour, but reconsideration ‑ ‑ ‑

GUMMOW J:   There is, is there not?  There is constitutional underpinnings.

MR BASTEN:   Indeed, your Honour.  I was just thinking in the terms of ‑ ‑ ‑

GUMMOW J:   This is an administrative ‑ ‑ ‑

MR BASTEN:   ‑ ‑ ‑ an administrative tribunal and I am not sure whether the difference would matter there.  We would say reconsideration according to law.  The matter is remitted to the Tribunal to be determined in accordance of law.  In accordance with what your Honours Justices McHugh and Gummow said in Khawar, the matter is at large before the Tribunal.  That is paragraph 88.  I can take your Honours to that.  We would think, with respect, that that is right and that would constitute a reconsideration of the matter.

KIRBY J:   The Tribunal did not really give that a chance, did they?  Was the Tribunal aware of the Full Court’s reservation of the question of the constitution to it?  I assume it is the Principal Member.

MR BASTEN:   The Tribunal would, one might suspect, have been aware of the orders made on 10 November which appear more fully at page 214 of the main appeal book, but it was not clear that that was what the court was seeking to do, with respect.  Even if it were, there would be an issue as to whether the court had power to do it in the sense that the court was reserving to itself and thereby depriving the Principal Member of his statutory powers to reconstitute the Tribunal.

KIRBY J:   That is the question.

MR BASTEN:   That is the question.

KIRBY J:   The issue is whether those powers were themselves subject to the powers of the Federal Court reserved by the ‑ ‑ ‑

MR BASTEN:   I understand that to be the question, your Honour.  I was simply seeking – I am sorry.

GUMMOW J:   But the basic question is, what are the perimeters of the matter of which the Federal Court was seized?

MR BASTEN:   Yes.  Can I come to that in a moment, your Honour?  I agree with the way your Honour puts it, but I was asked what was the meaning of the term “dispute” in the fourth order.  I was answering that question simply to say that the court treated there being a dispute in circumstances where the applicant before the Tribunal sought to have the Tribunal constituted as originally constituted and the Tribunal had sought to reconstitute the Tribunal.

GLEESON CJ:   So the parties to the dispute were the applicant and the Tribunal?

MR BASTEN:   That is as we would understand it and that was accepted as a circumstance in which the Full Court thought it had reserve power to itself to deal with the matter.  Your Honours, in addition to the ‑ ‑ ‑

GLEESON CJ:   Was the Tribunal a party to these proceedings at any stage?

MR BASTEN:   No, your Honour.

KIRBY J:   You answer that it was the Tribunal and the applicant but, on one view, there was still a matter which was part of the matter which was alive in the Full Court.

MR BASTEN:   Yes.

KIRBY J:   That was between the Minister and the applicant, not between the Tribunal and the applicant.

MR BASTEN:   Yes, the Minister had taken no position as to the reconstitution.

KIRBY J:   That is right, but this was the conclusion of the ordering of the disposition of the matter by the Full Court was not finalised.  The matter was still alive within the Full Court by reason of its reservation of the liberty to apply.

MR BASTEN:   Whether it was or not, I suppose, will be determined by answering the question Justice Gummow poses.  We would say it was not, so ‑ ‑ ‑

GUMMOW J:   It is a similar question to Thiyagarajah really, in 199 CLR, 343.

MR BASTEN:   Yes, indeed, yes, and I would take the Court briefly to that, if I might, in a moment.  Whilst I am dealing with the papers, your Honour, we have been put on notice that some evidence is sought to be read in this case by the respondent.  We have been provided with a copy of an affidavit.  If that is to be dealt with, should it be dealt with now, your Honour?

KIRBY J:   How can we receive evidence in this Court?

MR BASTEN:   That would be my submission, your Honour, but ‑ ‑ ‑

GLEESON CJ:   I think we probably should deal with it now.  I was not aware of this, I must say.  Yes, Mr Gleeson.

MR GLEESON:   Your Honours will see from the concluding paragraphs of our submissions that ‑ ‑ ‑

GUMMOW J:   I do not at the moment.

MR GLEESON:   - - - that what we identified as question 4 which, in our submission, the Court will never come to is what would happen if the Court were to conclude that (a) there was power in the Full Court to do what they did, and (b) the Full Court erred in the exercise of its use of that power in a way that this Court holds was erroneous.  In that event, there would be a question as to what should be done with the further exercise of the power as to remittal.  Now, there are then two possibilities. One possibility is this Court would simply remit this matter back to the Full Court to deal with the application for liberty to apply.  The second possibility which we would urge, if at all possible, is that this Court should resolve finally the question as to how the Tribunal should be constituted for the purpose of Mr Wang’s review application.  In that context, to date, there has been no evidence that Ms Boland, the original member, was unavailable to continue the review.

GLEESON CJ:   I thought the Full Court inferred that she was from some correspondence.  There is a letter between Mr Coroneos, I think, and ‑ ‑ ‑

MR GLEESON:   Yes.  That is the position the Full Court has taken and we would submit that would be the proper basis upon which this Court would continue to act ‑ ‑ ‑

GLEESON CJ:   Is there any question about that, Mr Basten, that is to say, the availability of Ms Boland if it were otherwise appropriate to make an order of the kind that the Full Court made?

MR BASTEN:   We would say there is no evidence about that matter, your Honour.

GLEESON CJ:   Is there any question about it as an issue?  Is it a live issue?

MR BASTEN:   We would say there would only be a live issue if there was a challenge to the decision of the Principal Member and that decision had been based upon the relevant provision of the Act.

KIRBY J:   Yes, but this is on the assumption that what the Full Court did was within its powers.  What I take it this evidence is being tendered for is not on the appeal but on the suggestion that we should revoke special leave or deal with the matter in some other way because it is futile?

MR BASTEN:   We would say it is not a matter for the Court to make orders on the basis of fresh evidence.

GLEESON CJ:   But it is a matter to this extent:  our time is being wasted if Ms Boland is not available.

MR BASTEN:   I know.

GLEESON CJ:   If Ms Boland, for example, has ceased to be a member of this Tribunal then we would just rescind special leave, would not we?

KIRBY J:   That is the way I was ‑ ‑ ‑

GUMMOW J:   Any evidence really goes to rescission of special leave, it seems to me, and not otherwise.

MR BASTEN:   That is not why it is put forward, as I understand it.

GUMMOW J:   I know.  It is put forward on some ignorant basis, but that has to be the proper basis.

MR BASTEN:   Well, if that is the basis I cannot say any more about it, your Honours.  She is a member of the Tribunal.

KIRBY J:   So, what, we are not engaged in a futile exercise.  She is still a member of the Tribunal and if it is proper and lawful for the Federal Court to have acted as it did, then she can hear the matter?

MR BASTEN:   Yes.  Well, that is the inference sought to be drawn from that material, yes.

GLEESON CJ:   And we have no reason to think otherwise.  If we had any reason to think otherwise, we would just rescind special leave.

MR BASTEN:   Yes.  No, I understand that, your Honour.

MR GLEESON:   I have no application to make.

GLEESON CJ:   Yes, go ahead then, Mr Basten.

MR BASTEN:   Your Honours, apart from referring to the order at page 214, to which I have already taken your Honours, might I, by way of opening, note that at page 13 of the appeal book one finds the orders sought by the appellant or the applicant on the review application in the Federal Court at lines 20 to 25.  No direction in the terms made was sought.  In the circumstances which I have just indicated in answer to your Honour the Chief Justice, it is a fact that after the judgment was handed down by the Full Court the Tribunal was reconstituted, presumably by a valid exercise of power by the Principal Member, no challenge was brought to that decision, but rather the applicant sought to activate the grant of liberty to apply and took the matter back to the Full Court.  Following a further hearing, the Full Court effectively varied order 3 as it is found at page 214 so as to remit the matter to the Tribunal as previously constituted, the order being found at page 227.

Before going to the statutory scheme and the judgments below, might I start by setting out the position, which the Minister seeks to put to the Court, in terms of four propositions.  It is this that, firstly, at the time of the judgment on the appeal, having set aside the decision, the Full Court no more had power to direct the constitution of the Tribunal than it did to direct what decision the Tribunal should make on the merits.  Each matter was a matter vested by the Act in a body other than the court.

The second proposition is that at that time the Tribunal as originally constituted had further functions to perform.  A remittal to the Tribunal would in fact and in effect be a remittal to the Tribunal as then constituted.  The order made need not say that expressly but, had it done so, it would not necessarily have been bad.  However, what it would not have done would have been to preclude the exercise by the Principal Member of the statutory powers of reconstitution vested in him in specific circumstances.

KIRBY J:   Just pause there.  It is true that the normal relationship between a court and another court or a court and a tribunal is to leave it to the subordinate court or tribunal to constitute itself on a rehearing, but it is not at all uncommon, as, for example, in matters relating to natural justice, for a court to order that the matter not be heard by the same court or tribunal.  It goes to courts and it also goes to tribunals.  If it can be done in that circumstance, then you are acknowledging that there is no absolute rule that the Principal Member’s right to reconstitute the Tribunal is the normal principle but there is at least one exception.

MR BASTEN:   That exception, if I may take up what your Honour puts to me, is significantly different from the present case for two reasons, although it may depend how widely one frames the exception.  The first is that it is usually an order that the court or tribunal not be constituted as previously – a negative order – rather than a direction as to the person who is to constitute the tribunal.  Secondly, that order is at least justifiable in the circumstances where the decision has been set aside for bias or reasonable apprehension of bias.  The reason for that, we would accept, is because the very ground upon which the decision was set aside depends upon the constitution of the tribunal as at the date it made its decision.  Unless there is some reason to think that the ground would dissipate over time, that would be an appropriate order for that reason, so to that extent I am accepting what your Honour is putting to me.  I will come back to that aspect of the matter if I may because it may be possible to phrase the exception more widely and I need to comment on that.

KIRBY J:   What you have to consider is whether the power extending to a negative stipulation does not also in certain cases, of which there is an infinite variety, extend to a positive stipulation for the sort of reasons Justice Gray, as cited in the respondent’s submission, as saying.

MR BASTEN:   Yes.  I will be submitting that it would not, your Honour, but I need to expand on that matter obviously.  The third of the propositions that I wanted to put was that the intended effect of the order made, or direction made in the present case, was to prevent the exercise of the power vested in the Principal Member and, worse, it was to override an exercise that had already taken place, albeit after the court proceedings were commenced and after judgment was delivered.

KIRBY J:   Could you just clarify that for me?  After the proceedings had commenced, that is to say the proceedings on the reserved ‑ ‑ ‑

MR BASTEN:   No.  After the proceedings in the Federal Court for review had commenced.  In other words, what the purpose of the order was directed at was conduct which had occurred subsequent to the decision, which was under review, and which was not conduct which was the subject of any separate application to the court to review that conduct.  That, we would say, is inappropriate.

KIRBY J:   I am just trying to get clear the chronology of the events.  The setting aside of the order and the exercise of the liberty to apply and the reconstitution by the Principal Member.  Is that set out in your chronology?

MR BASTEN:   It is, in the chronology after the written submissions in the bundle, your Honour.  Your Honour will see on the first page 10 November - I should go back.  The application for an order of review was filed on 22 December 1999.  That was the commencement of the proceedings in the Federal Court.  The judgment of the Full Court is 10 November 2000.  There is then, after the orders are entered, the letters requesting that the Tribunal be constituted as before.  Then on 3 April 2001 the Full Court makes the further order as to the proper constitution of the Tribunal after the Tribunal has been reconstituted, as indicated by the letter of 10 January 2001.

KIRBY J:   But this does not state when the Principal Member purported to reconstitute the Tribunal.

MR BASTEN:   No.

KIRBY J:   Is that proved by evidence, or is that an agreed fact before us?

MR BASTEN:   There is no more before the Court by way of evidence than that letter which appears at page 172 of the appeal book and the inferences that were drawn by two members of the Full Court that what had occurred was a reconstitution by the Principal Member.

Your Honours, the fourth proposition I was seeking to put was this.  In a case where it can properly be said that a ground of challenge leaves a particular finding of fact untainted, which is not, we would say, this case, there is no doubt a practical attraction in not permitting the relitigation of issues unaffected by the ground which has been upheld.

HAYNE J:   Is that the conclusion of the proposition you advance?

MR BASTEN:   No, it is not, your Honour.

HAYNE J:   Perhaps if you finish it.

MR BASTEN:   The question which is formulated by that proposition is in whom is the power vested to effect that solution?  Our answer is that the power to give effect to that practical attraction is vested in the Tribunal and not in the Federal Court.  So that it is a matter which the Tribunal, either through reconstitution or not by the principal member, and either by taking account of the existing state of affairs before the Tribunal by the member who is constituted to make a decision, should properly deal with the matter.

HAYNE J:   The proposition is one that is cast in terms apt to description of a curial process.  It uses the expression “findings”; it speak of “relitigation”.  For my own part I would regard the adoption of that language as contestable and perhaps representing the centre of the contest on one aspect of this case.  Are there any findings by a Tribunal member that can be “left intact” when a matter is remitted?  Is it relitigation?  It seems to me that ‑ ‑ ‑

GUMMOW J:   Is it litigation at all?

MR BASTEN:   No, it is not.  I accept both ‑ ‑ ‑

HAYNE J:   Highly contestable propositions which seem to assume answers drawn from an entirely separate and distinct field of discourse.

MR BASTEN:   I accept both those criticisms.

KIRBY J: What is litigation? What is the magic of the word “litigation”? What is the term of art “litigation”? It is not in the Constitution.

HAYNE J:   Judicial power.

MR BASTEN:   I did not intend it to obviously – I am putting, as it were, a proposition against myself.  Because it is said that there is a practical attraction in this, I am simply seeking to say that if there is, then it is a matter for the Tribunal to take account of that fact.  But having said that, I accept that I have formulated it in a way which is inapt.  I certainly did not mean “relitigation” to be meant in the sense of an exercise of judicial power and it is inapt for another reason.  This is not even before the Tribunal an adversarial process in the sense that there are two contending parties.  There is only one party.  There is an applicant seeking the exercise of a discretionary power.  So that for that additional reason, the terminology I used was inapt.

I did, however, in relation to the first question raised by your Honour Justice Hayne, say that we did not accept that this was the sort of case where one had findings of fact, and I think I said that earlier on when I accepted Justice Gummow’s question about what actually was being done when the matter went back.  So there is underlying the judgments in the Full Court either an assumption or a proposition that findings of fact were made by the Tribunal which may be preserved.  We do not accept that proposition.  That seems to us to be a wrong basis on which to approach the matter.  I was really trying to seek to say why it was rather than to accept the language used.

KIRBY J:   At some stage I would be helped if you would explain how the Tribunal went off the rails.  Apparently she asked the right question but then came to the incorrect answer or did not answer the question.

MR BASTEN:   Yes.  I can do that.  In a sense, your Honour, we say that the answer to that question is background rather than essential for an understanding of ‑ ‑ ‑

KIRBY J:   But it is relevant to the issue of the suggestion that facts were found or that the Tribunal was very far advanced in the discharge of its obligation, that it got to the very asking of the question and asked the correct question and then answered a different question.

MR BASTEN:   When completing my answer to Justice Hayne I had not actually finished the proposition I was going to put because I was going to say that the reason why we approached the matter in that way is, firstly, because once the decision is set aside, there are no findings of fact which remain.  That is a proposition which is put differently and in a slightly different context perhaps in a matter of Morales 82 FCR 374, to which I was going to take the Court briefly. Perhaps it is convenient if I simply advert to that matter now, because in Morales there was a remittal to the Administrative Appeals Tribunal without a direction by the trial judge as to how the matter was to be dealt with. 

At page 386C the question of the effect of the remittal is addressed, but on the following page, 387, under the heading “Issue estoppel” the Full Court accepted that there could be no findings of fact that remained once the decision had been set aside.  The decision, of course, is the decision of the Tribunal, in this case, to affirm a decision of a delegate to refuse to grant a visa.

Perhaps rather than staying with that case, however, which is merely illustrative of the point, may I come back and make two other short points in completion of the argument that it is not a matter for the Court to deal with findings of fact in this way.  Firstly, they do not exist.  Secondly, the conduct of the continued review is subject to the statutory scheme in Part 7 of the Act and that was the proposition which your Honours accepted in Khawar’s Case 76 ALJR 667 at paragraph [88].

Thirdly, the important factor as to the time is this.  The time at which the ultimate question is to be answered by the Tribunal is the date of its determination.  There is authority for that in a matter of Singh (1997) 72 FCR 288 in the Federal Court. We have provided your Honours with a copy of that decision. Your Honour Justice Kirby reached the same conclusion in the Applicant A 190 CLR 225 at the top of page 293. That provides another reason why one might think that the matter is properly at large when it goes back to the Tribunal.

KIRBY J:   The respondent says that whatever may be the general principle, that here the source that you have to look at to see the Federal Court’s powers is section 481(1).

MR BASTEN:   Yes.

KIRBY J:   But that lists a number of powers, one of which is order affirming or setting aside the decision or part of the decision, but then goes on in (b) to an order referring the matter to the person who made the decision for further consideration, and in the chapeau to the section it says that:

the Federal Court may, in its discretion, make all or any of the following orders –

So the submission is that that postulates the possibility that at least in this peculiar circumstance the Federal Court has the power not only to set aside but also to refer the matter back to the person who had made the original decision.  What is wrong with that as a matter of statutory construction?

MR BASTEN:   There are a number of aspects to it, your Honour, which I need to deal with seriatim I think.  Firstly, there is no doubt that the court has power to give directions and the question is whether the form of direction given in this case is an appropriate one.

The second issue is whether in paragraph (b) the reference to “person” is a reference to the member who constitutes the Tribunal or to the Tribunal as such.  Although the term “person” may seem inapt to refer to the Tribunal, there are reasons to suppose that in this case, at least, it does.  Section 475 of the Migration Act, which appears at page 38 of the bundle we provided to the Court in the form it was in at the relevant time, or in Reprint 7 of the Act, addresses three categories of decision which are reviewable by the Federal Court.  The first two are decisions of the tribunals, the Immigration Review Tribunal and the Refugee Review Tribunal.  Category (c) is:

other decisions made under this Act, or the regulations, relating to visas.

Which could obviously be made by persons other than tribunals and will be.  That would explain why the broad term “person” is adopted.  It is clear, however, from Part 7, which deals with the conduct of reviews by the Refugee Review Tribunal, that what eventuates from the review is a decision of the Tribunal.  That is the language adopted, for example in section 430.

GUMMOW J:   Now, just before you race ahead, I am looking at Reprint No 7.

MR BASTEN:   That is correct, your Honour, that is the correct print.

GUMMOW J:   Yes?

McHUGH J:   The critical issue is, who made the decision, is it the Tribunal or is it the person?  Now, at common law in this area of judicial review where you had a tribunal, writs always had to be directed to the tribunal, not the individuals. 

MR BASTEN:   Yes.

McHUGH J:   This Court said so in Balm’s case from the Industrial Relations Commissioner in New South Wales and then the New South Wales Court of Appeal and Commissioner of Police v Kerr said the same thing, so ‑ ‑ ‑

MR BASTEN:   Your Honour said it in this Court in relation to a migration matter.

McHUGH J: Yes. It is different under section 75(v) of the Constitution because you are dealing with a specific person and Order 55 of our Rules, I think it is rule 8, seek to overcome that to some extent by saying that when you are seeking prohibition or mandamus, you can be against an individual, you say it specifically, but the general view is that the decision is made by the Tribunal, not by the individual.

MR BASTEN:   Yes, yes.  Well, we, with respect, would say that that is consistent with the language of Division 3 of Part 7 and section 421 provides that for the purpose of a particular review, the Tribunal is to be constituted in accordance with a direction under subsection (2) by a single member which seems to concede that it is and the rest of the Part is based on the assumption that it is the Tribunal which is making the relevant decisions.

KIRBY J:   But is that not a bit difficult in the light of the actual language of 481 because it opens with:

(1) On an application for review of a judicially-reviewable decision ‑ ‑ ‑

MR BASTEN:   That is so.

KIRBY J:   That gives you the referent and the referent here is the decision of the Tribunal.

MR BASTEN:   Yes.

KIRBY J:   Then it goes on, “the person who made the decision”, so “the decision”, the definite article is by inference a reference back to the chapeau and therefore the legislature has in this particular case, for some reason, ostensibly so that there is a power to refer back for the saving of time and cost to the person who made the decision, being the Tribunal, the reconsideration of the matter.  It is to enhance the powers of the Federal Court which one would not normally read down.

MR BASTEN:   There is a question, your Honour, as to whether the term “the person” is to be read in that way because it obviously includes, potentially, both individuals and tribunals.  The fact that the drafter has not used the words, “the Tribunal or person”, rather has just said “the person” may not ‑ ‑ ‑

KIRBY J:   Yes, but it is under the chapeau that is speaking generally.  This is the mistake that Justice McHugh is constantly warning against that you are taking a word and not reading the whole context.

MR BASTEN:   That is my argument, with respect, that the decisions which are reviewable and are referred to in the chapeau are decisions either of individuals or of tribunals.  There can be no others.  The question is, what is the significance of simply using the word “person” in paragraph (b), rather than “person or Tribunal”?  Your Honour is suggesting that one construction is that it is a deliberate attempt to have the matter referred back to the person who constituted the Tribunal at the time of the decision.  Now ‑ ‑ ‑

KIRBY J:   That is inferred, I would think, from the generality of the chapeau and the fact that nowhere else in (a), (b), (c) or (d) is there a reference to “person” or “Tribunal”.  Therefore, within the context, reading the word “person” in (b) in the context of the whole sentence which is a very long sentence, as distinct from taking it out of context, you are talking about the person who makes the judicially reviewable decision.  In this case, that person happens to be constituting the Tribunal.

MR BASTEN:   Your Honours, at the end of the day, it does not matter for my argument, but the contrary view has been adopted, both in the Full Court in this case, and I think reasonably consistently in the Federal Court since the judgment of Justice Merkel in Nguyen v The Minister 88 FCR at page 206 and ‑ ‑ ‑

KIRBY J:   What, they say “person” here means only the delegate, for example.

MR BASTEN:   Yes and should be read as meaning the Tribunal where the decision-maker was the Tribunal.  The reasoning in relation to that point commences at letter G on page 215 and goes to the top of letter B, perhaps, on page 216 and I hope it is largely to the effect that I summarised a moment ago.

KIRBY J:   I was not aware of Justice Merkel’s decision so I will just have to read and think about that.

MR BASTEN:   Yes, it is really only that passage that deals with that.

KIRBY J:   It is contrary to my immediate impression, but it may be persuasive.

MR BASTEN:   Yes.  Justice Gray took a different view in a case to which he refers in the judgment, but he abandoned that view and accepts the view of Justice Merkel in Nguyen, as I understand it.  But can I say why though it is not critical for the Minister’s case that that is the correct reading of the word “person”.  What I was seeking to say before was that the Tribunal will almost inevitably be constituted by the person who made the decision as at the date of the Federal Court’s judgment, because the Tribunal itself will have assumed, until the decision is set aside, that it was functus when it made the decision.

So it is implausible, at least, that the Principal Member would have any opportunity to exercise a statutory power of reconstitution between the date of the decision and the date that it was set aside.  So that, as a matter of practice, there is no problem in referring the matter back at the date that the order is made under 481 to the person who constituted the Tribunal so long as one does not take from that referral the additional proposition that the Principal Member has no power left under sections 422 and 422A to be exercised in the circumstances those sections provide for.

KIRBY J:   Here the Principal Member was on notice, (a) that the applicant’s solicitors had written asking that it do go back to the Tribunal member who heard the matter first and (b) that the Federal Court Full Court had reserved liberty to apply on that matter.

MR BASTEN:   Well, what precisely the Full Court reserved liberty to apply on is not precisely clear; what the Tribunal understood it to mean, we do not know, your Honour.  We can accept that a reading of the judgments suggest that the Full Court thought that it should be reconsidered by the Tribunal as originally constituted, but a majority declined to make an order to that effect.  So the Principal Member would have been aware of a view of the court, which would no doubt have been properly taken into account, but was not subject to any direction not to reconstitute.  What happens thereafter, of course, is that an order is made reconstituting and then the Full Court makes an order which is inconsistent with the reconstitution order, although it never sets aside the order reconstituting the Tribunal.

KIRBY J:   Well that would not have been appropriate, because it did not have an application before it to set that aside ‑ ‑ ‑

MR BASTEN:   No, it did not indeed.

KIRBY J:    ‑ ‑ ‑and therefore they were simply discharging what they took to be the remnant of the judicial power.

MR BASTEN:   That is so, I accept that, your Honour.

GLEESON CJ:   You use the expression an order reconstituting the Tribunal.  Is it done by order?

MR BASTEN:   Direction, I am sorry.

GLEESON CJ:   Direction.

MR BASTEN:   Sections 422 and 421 provide for the Principal Member to make a direction.  In 422(1), where a person:

(a)  stops being a member, or

(b)  for any reason, is not available for the purpose of the review at the place where the review is being conducted;

the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

And might I note in 422(2):

If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

GLEESON CJ:   Under section 421(2) there is a power to give a written direction about who is to constitute the Tribunal in place of a particular review.  Does a direction have to be in writing?

MR BASTEN:   As I would understand it, yes; a direction as to the constitution.

GLEESON CJ:   That is rather unusual.

MR BASTEN:   Yes.

GLEESON CJ:   There was actually a case about this in the Supreme Court of New South Wales a few years ago and if you look at the Supreme Court Act there are all sorts of provisions about who has the power to constitute what, but decisions are usually made informally.

MR BASTEN:   Yes.

HAYNE J:   Effect may have to be given to the provisions of subsection (1), may it not, which may be the basis on which one might conclude that there had to be a direction?

MR BASTEN:   Yes, that was the way I had read the “in accordance with the direction under subsection (2)” provision.  This decision of the Principal Member is reviewable either under this Act, if it is a decision relating to a visa, for the purposes of section 475(1)(c), or if it is not such a decision – and the constitution decision may not be – then it will be reviewable under the Judicial Review Act.  So there is no doubt that the decision of the Principal Member, subject to anything else one might think relevant, would be a potentially reviewable decision.

KIRBY J:   What is the relevance of that?  That was not before the Federal Court.

MR BASTEN:   Well, that is the point, your Honour.  Your Honour was asking me before what the Principal Member knew and on what basis he acted.  We do not know.  Perhaps we will never know, since he is now deceased.  The decision which constituted or reconstituted the Tribunal is an entirely separate decision, we would say, from anything which was before the Federal Court, and it was an administrative decision placed by the Parliament within the power of an executive officer.

GLEESON CJ:   That is what led to my earlier question, my original question, as to what is this dispute about the constitution of the Tribunal referred to in the original order.

MR BASTEN:   Yes.

GUMMOW J:  I just do not understand all this.  Can you go back to 481, Mr Basten.

MR BASTEN:   Yes, your Honour.

GUMMOW J:   Now, 481(1)(b) uses the words “the person”? Justice McHugh referred you to the notion of tribunal.  If you go to 475(1), there can be decisions of two tribunals, and other decisions of individuals.

MR BASTEN:   Yes, the Minister or Delegate.

GUMMOW J:   That is right.  The expression “person” in 481(3) is a distributive expression designed to embrace all the institutions that fall within section 475(1)(a), (b) and (c) and it refers it therefore back to the Tribunal.  End of question.

MR BASTEN:   Well, that is my submission, your Honour.

GLEESON CJ:   Indeed, if “person” in paragraph (b) meant only the individual decision‑maker, then if Ms Boland died, there would be an end of the power.

MR BASTEN:   Yes.

GUMMOW J:   Well, it is supported by section 22(1) of the Commonwealth Interpretation Act.  It talks about “person” including bodies as well as individuals.

MR BASTEN:   Yes.

McHUGH J:   Well, 477 also refers to:

(2) If:

(a) a person, other than a tribunal, has a duty to make a judicially –

And 430 says:

Where the Tribunal makes its decision on a review –

So 481(1)(b) must include both the case of a person who has a duty under 477, for example, and also a decision by the Tribunal under 430.  The real question is who made the decision in this particular case, the Tribunal or the individual?

MR BASTEN:   Yes.

GUMMOW J:   The answer has to be the Tribunal.

MR BASTEN:   Yes.  But all I ‑ ‑ ‑

KIRBY J:   That is one way to read it.  The other way to read it is that the word “person” is a general word which is used to pick up all of these things, the Tribunal, the Delegate, the individual decision‑makers, and that is supported by the generality of the purpose and the generality of the chapeau.  That is the other way to read it.  I mean, there are two ways to read it, and we have to seek the way that gives the best effect, and then you ask yourself, “What does that involve?”, and then you answer, “It involves not cutting down the power of the Federal Court which is a superior court which normally has to have large powers in order to deal with the myriad of circumstances that come before it.”  We have said that so many times.

MR BASTEN:   Yes, and I accept the way that your Honour puts it.  The reading which I was proposing was that Justice Gummow put to me, but my further answer was ‑ ‑ ‑

GUMMOW J:   The member may be dead, the member may not have been renewed, and the whole thing would collapse.

MR BASTEN:   Collapse, yes.  But my point was really in addition that even if one were to read it in that way, one still must have a power of reconstitution where the person stops being a member.  This Court appears to envisage an order which would preclude any variation being made in the constitution of the Tribunal even if section 422 in the circumstance imposed a statutory mandatory obligation on the Principal Member to reconstitute.  That, we say, is not consistent with the proper reading of the Act, or rather the Federal Court’s approach is not.

KIRBY J:   You put it very widely.  As I understand it, the Federal Court had before it material on which it was prepared to infer that Ms Boland was still a member of the Tribunal, that she had got a long way, all she had done at the very end of the matter was to answer the wrong question, though she posed the correct question, and that in those circumstances it was appropriate for the Federal Court to activate what it took to be its power under 481(1)(b).

MR BASTEN:   My response to that argument, your Honour is that it is not a matter for the Federal Court to make these discretionary decisions as to how the Tribunal is to be constituted.

KIRBY J:   That is what you say, but 481(1)(b) is a grant from the Parliament of Australia.

MR BASTEN:   Yes, and it was a grant ‑ ‑ ‑

KIRBY J:   And to a federal court, and to a court, with a myriad of circumstances and for rational reasons:  to save time of reinventing the wheel where a case has to be set aside but has gone off at the very end in answering the wrong question, though the correct question was posed.

MR BASTEN:   Yes.  Well, the proposition that we put in relation to that matter is ultimately the guidance relied upon in Thiyagarajah 199 CLR 343 in the discussion at paragraphs 34 through to 37, where the majority judgment relied upon what was said by Justice Sheppard albeit in relation to the Administrative Appeals Tribunal Act, at the bottom of page 356, namely that:

The order which this court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision.  It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this court’s view on the alleged or found error of law.”

Your Honours then noted that the AAT Act was in somewhat different form, section 44 was in different form to 481, but at point 5 on page 357 accepted that:

Gungor provides guidance as to the appropriate exercise of discretion to make one or more of the orders identified –

and referred to Justice Brennan in Johns.  All those passages we seek ‑ ‑ ‑

GUMMOW J:   That is a significant remark made by Justice Brennan.

MR BASTEN:   Yes, indeed, it is, and we seek to rely upon it.  I do not read it, but it is justice according to law.

KIRBY J:   Yes, but if the Act gives the power and if the Federal Court takes the view that everything went swimmingly before the Tribunal – the facts were examined, the issues of credibility were assessed, the correct question under the Act and the Convention was posed – but the Tribunal member at the gun, went off the rails and answered the wrong question, what is contrary to law for the Federal Court then to say, “We’re not going to require the reinvention of the wheel.  We’re just going to go back and answer the correct question which the Tribunal member posed but did not answer.  Go back and answer your own question.”?  There is nothing wrong with that.  That is commonsense, saving money, saving taxpayers’ money.

GUMMOW J:   That is the decision of the Principal Member under 460.

MR BASTEN:   That is right, yes.  That is our submission ‑ ‑ ‑

KIRBY J:   That is subject to the power of the Federal Court.  The Principal Member’s powers are subject to the power of the Federal Court in an incompleted matter before the judicial power of the Commonwealth.

MR BASTEN:   Then the question is raised, in circumstances where the Full Court did not think it necessary or appropriate to make an order in the form we are now considering at the time when the appeal was determined, whether it becomes necessary to make the order ‑ ‑ ‑

GUMMOW J:   Well, firstly, of course, it is not truly an appeal.  I know that is a legislative mischief that it is not an appeal.

MR BASTEN:   I meant the Full Court appeal from the single judge.

GUMMOW J:   Yes.

MR BASTEN:   Yes, I understand what your Honour is saying.

GUMMOW J:   But the Full Court was just doing what the primary judge ….. and the primary judge was not seized of any appeal.

MR BASTEN:   Indeed, which is an order of review, in effect, not an administrative decision, I accept that.

McHUGH J:   Mr Basten, having read the submissions of the parties and thinking about the matter, at the moment my view is that it is fairly plain that the person who made the decision in this case was the Tribunal, but what about the concluding words of the paragraph, “subject to such directions as the Court thinks fit”?  Is it not those words that empower the Federal Court to say, for instance, in a bias case, that the member who has been found guilty of bias or apprehended bias cannot or should not be a party to the Tribunal?  Why, under the words “subject to such directions as the Court thinks fit” remit it; refer the matter back to the Tribunal, but nevertheless, under the words, “subject to such directions” direct that a particular person, or a person who actually heard the case should not hear it, or should hear it.

MR BASTEN:   Well, there may be a difference there and that was the point I was seeking to make in answer to Justice Kirby earlier.  What I accepted was that a direction that the person who made the decision should not continue the review would be appropriate where the ground had been bias or apprehended bias.

McHUGH J:   But once you accept that, the question is, where does that power come from in the Federal Court?

MR BASTEN:   Yes, and in terms of the principle which was accepted in Thiyagarajah it is a power which is conferred on the Court to do justice in conducting a review of a decision.

McHUGH J:   Yes, but justice is not out there.

MR BASTEN:   No, no.

McHUGH J:   The Federal Court is a statutory court and to get its power to do justice it has to get it from somewhere.

MR BASTEN:   Yes.

McHUGH J:   It has no inherent powers, you know.

MR BASTEN:   Under this Act, what I was envisaging was a finding under 476(1)(f) that the decision was induced or effected by actual bias; in other words, a ground which focuses upon an aspect of the decision‑maker in question.  If one has upheld a ground on such a basis it would be entirely appropriate and within the scope of the power conferred on the court to give a direction that  ‑ ‑ ‑

McHUGH J:   What power?

MR BASTEN:   Section 481(1)(b) – to direct that that person not continue the review when the matter is remitted.

McHUGH J:   Once you concede that subject to such directions you can direct the person who made the decision cannot hear it, why cannot you direct that the person who made the earlier decision can hear it, or must hear it?

MR BASTEN:   Well, there may be a distinction.

McHUGH J:   Why?

MR BASTEN:   I would have thought there would have been no objection to a direction that the person can hear it.  It would not have much legal consequence, perhaps.  Whether one can direct that the person must hear it is a different question, and it is different because the obligation on that person to continue does not arise from the accepted ground.  If the person has erred in law, there is nothing which follows from that as a matter of logic, in terms of doing justice according to law, which would require that person to continue to exercise the power.

KIRBY J:   Except that if the error is failing to answer the correct final question, then one can say that the justice according to law is to go back and answer the final question which you correctly posed but did not answer.

MR BASTEN:   Well, your Honour puts it in that way, but if the decision has been set aside then  ‑ ‑ ‑

KIRBY J:   Because the final question was correctly posed, but unanswered.

MR BASTEN:   Yes.

KIRBY J:   Go back and answer your question.  You got the question right, but you did not answer it.  It is time you answered the question.

MR BASTEN:   But there is a question about why, in that circumstance, only that member can lawfully ‑ ‑ ‑

KIRBY J:   Because she has not completed a task.  She got very close to the barrier; she was right up at the last furlong, but she did not just go over the line.  Well now, you do not run the race again.  You simply say, “Go back and get to the finishing post”.

MR BASTEN:   Well, your Honour says you do not run the race, but that assumes that there must have been findings of fact, or something like that, views formed upon facts as presented to the Tribunal member at the time of that decision.  It is now more than two years ago.

KIRBY J:   If she feels that she cannot do it, she will, no doubt, embark upon a larger hearing.  But, I mean, it is two years ago because of this litigation.

MR BASTEN:   Yes.

KIRBY J:   We have to really pose the issue as one of principle.

MR BASTEN:   Indeed.

KIRBY J:   Does the Federal Court of Australia, the national appellate court under this Court, given the power that the Parliament of Australia have given it under 481, which you concede could be used for directions of a negative kind, have the power to give directions of an affirmative kind when there is no distinction in the statute and the Parliament has used words of general connotation?

MR BASTEN:   In a circumstance.

KIRBY J:   It is pretty hard.  You want us to read in a restriction.

MR BASTEN:   No, your Honour.

KIRBY J:   Why should we do that for a Federal Court, a national court, a superior court which has to deal with a whole myriad of circumstances?  You can never say, “You’ve just made one little slip.  Go back and fix that up”.  You have to always go back to taws.  It seems a very inefficient theory of the Act the Minister is posing.

MR BASTEN:   May I come back to the order made?  The order did not direct the member how to conduct the further review.  The member may have properly decided, “I need to start this from scratch now”; or, “I have been presented with further information which I need to take into account”; or, “The Chinese Government now no longer discriminates in this way against people who are members of unregistered churches”.  All of that would have been open to the member, whoever it was.  But the question your Honour poses might be reformulated in this way.  Was it intended that in circumstances where there was nothing before the court as to the future possibility of reconstitution, that the court was being given a power to preclude a reconstitution by the Principal Member under 422 or 422A?

KIRBY J:   Well, I agree with you that it would be a rare case where the power was used affirmatively.  I remember in the Court of Appeal I do not think I ever so ordered, but I did not have a statute which is quite like this and one can, at least, envisage the possibility that a very small slip is made in, say, a very long hearing.  In such a case you are positing that the Federal Court just does not have the power and I am just saying that is a large ask, at least as far as I am concerned.

MR BASTEN:   Only if this Court does not trust Parliament’s conferral of power on the Principal Member.

KIRBY J:   The answer to that is that you do not trust the Full Federal Court?

MR BASTEN:   No, the answer to that is that the exercise of the power must flow from the conclusion the court reached as to the ground which it upheld.  If there is an error of law, no order is required in relation to the constitution of the Tribunal.  Whether it is reconstituted or not, the member is entitled expressly to have regard to what has already happened.  I took your Honours to 422(2) in that regard.  If 422A is the relevant source of power, then subsection (3) makes express reference to that possibility as well, namely that the new member:

may . . . have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.

It may be that if in the circumstance your Honour posits the fact that the Tribunal had formed a view about (a), (b) and (c) but not (d) and that there was nothing before the Tribunal to suggest that (a), (b) and (c) should be decided differently, the Tribunal without regard to any views of the applicant sought to reopen the whole inquiry.  Perhaps there might be a procedural error in that, but that is a matter for the Tribunal, with respect, not for the Federal Court to say in anticipation.

I suppose the final point is that that is not this case.  I do not know that for the power argument I need to do it, although for the discretion argument, if one gets to it, I may need to say this.  It is far from clear what findings of fact, if there be such, were intended to be preserved by the order of the Federal Court made in April 2001.  That that was the intention is clear from the way that members of the court put the matter.  At page 217 it is sufficient to note that Justice Wilcox at line 25 agreed with the orders proposed by Justice Merkel.  The following two paragraphs do not qualify that.  The basis on which Justice Merkel sought to make the orders appears, I suppose, from the whole of the judgment, including a discussion at page 224 about the powers of the Principal Member.  But at page 225 at line 15 – perhaps I should read the whole of paragraph 22:

In the event that the Court determines that it is appropriate in the exercise of its discretion to remit the matter to the RRT that heard the matter originally, because it is in the interests of justice to do so, then (putting aside issues of unavailability etc) –

and we are not sure what his Honour meant by that –

there is no power in the Principal Member to exercise a discretion to determine that a different course is to be followed.  Accordingly, the issue is not whether the Court is interfering with the exercise of discretion of the Principal Member.  Rather, it is whether the Principal Member is authorised under the Act to exercise a power in manner that is inconsistent –

with section 418.  Then at 23:

It is to be recalled that the decision of the original RRT was set aside by reason of errors of law and not by reason of any challenge to any of the factual findings made by it.  Further, for the reasons set out in the reasons for judgment of each of the members of the Court, it seemed desirable that the same member re‑hear the matter on the remittal.

We say firstly that is not a matter which is judicially conferred upon the Federal Court to determine and desirability is not in any event a judicial criterion for determining such matters.

HAYNE J:   His Honour’s views appear premised on matters he identifies at paragraph 17 of his reasons, page 223.  He poses the question, in effect, as “why not?” rather than “why?” but goes on to significantly to say in the reasons for judgment, in effect earlier published:

the view was clearly expressed that the appellant was entitled to have the matter remitted to the originally constituted –

Tribunal.

MR BASTEN:   Yes.

HAYNE J:   Do you say it is discernible what the members of the court regard as the foundation for the entitlement there described?

MR BASTEN:   No, with respect.  We would say there is no entitlement and the matter is not discussed in any detail.  Justice Merkel dealt with the matter on the earlier occasion at page 212 and posited the possibility that there might be a direction and at line 9 his Honour is considering whether the general rule that the matter be heard by a differently constituted RRT be directed.  He says:

that direction may not be appropriate in the present case as to do so might deprive the appellant of findings that were favourable to the outcome of his application.

So, apart from restating the conclusion, as it were, that does not take the matter very much further.

HAYNE J:   The language of deprivation seems to be premised on perhaps notions of estoppel or perhaps associated ideas, again the bases for which are not evident instantly.

MR BASTEN:   No.

KIRBY J:   The alternative theory which I think is put up in the respondent’s submission is that they are based on feelings of unfairness, that you get so far, you have a determination which appears to be going in a particular direction and then, because the wrong question was ultimately answered through a slip that is not your fault, you lose the opportunity of a favourable decision which is very important to this applicant.  I at least can understand that point of view.

GLEESON CJ:   That is made pretty clear on the top of page 187 by Justice Gray, is it not?

MR BASTEN:   Yes, I was going to take your Honours to 186 to 187.  It was a legitimate expectation point there, I suppose, being expressed.  At page 186 at paragraph 25, his Honour said:

If the RRT were to be reconstituted, there is a danger that the appellant might lose the benefit of the favourable findings of fact to which I have referred.

KIRBY J:   Where is that, I am sorry?

MR BASTEN:   Paragraph 25 in the middle of page 186, line 30 to 35 - it is to similar effect.

HAYNE J:   Again, to speak in terms of deprivation of the fruits of a successful appeal is to inject curial parallels.

MR BASTEN:   Yes, indeed.  Your Honours, in the submissions we have referred to other cases which have adopted a similar approach.  May I take your Honours to just one of those because there is some further exposition of the reasoning which appears in this case, and that is the matter of Minister for Immigration v Applicant C 66 ALD 1. Your Honours, in this case, as appears at paragraph 12, Justice Lee agreed with the reasons of Justice Stone. Justice Stone dealt with this matter at paragraphs [92] through to [95]. She identified at [92] two issues which had been raised. One was that:

the direction that the matter be remitted to the tribunal as previously constituted –

be made, and secondly:

that the issues to be considered by the tribunal be limited.

Her Honour says in relation to the second issue it is not appropriate to make such a direction.  She says at paragraph [93]:

This submission overlooks the fact that the determination to be made by the tribunal is whether Australia owes protection obligations to the respondent.  This determination is to be made as at the date the application is assessed.

At paragraph [94] she says she has doubts as to whether the power of the court exists to make such a direction and she declines to.  Then at paragraph [95] in relation to the question of how the Tribunal is constituted, she accepts that the court has power pursuant to the orders and judgment in this case.

I wanted to take your Honours briefly to the judgment of Justice Gray in this case where he explains at paragraphs [4] and following partly the reasoning that gave rise to the conclusion in the present case. 
At paragraph [4] his Honour says:

In such cases, there may be injustice in referring the matter to which the decision relates to the tribunal, with a direction that the tribunal be reconstituted.

We would say that such a direction would be unnecessary and inappropriate and beyond power.

KIRBY J:   Which paragraph was that?

MR BASTEN:   Paragraph [4], first line.  There would be no basis for making that direction.

The injustice would arise from the necessity for a reconstituted tribunal to deal with the whole matter again –

That is not so because the statutory provisions say otherwise.  Then he gives some practical reasons why these are questions of concern, and he says:

It would also have the potential to produce different results.  A differently constituted tribunal might reach a different conclusion on the issues already decided –

which appears to envisage a form of issue estoppel inconsistently with what the Full Court correctly said in Morales.

KIRBY J:   Not necessarily, if you take his Honour merely to be referring to aspects of a case which the Tribunal has determined favourably to an applicant.  The real problem – we all know it – you go back to a differently constituted Tribunal and you might draw somebody who has a different approach.  That is just an aspect of human justice.  Here is this applicant who has got all the way down the road and then the wrong question is answered.

MR BASTEN:   Well, your Honour says “all the way down the road”, at paragraph [5] his Honour comes back to this case and in the middle of the paragraph says:

All members of the Full Court were of the view that the same Member of the RRT should deal with the further consideration of the matter, so that Mr Wang would not lose the benefit of the favourable determination of the issue whether he was a Christian.

Now, that is apparently the reason which is given in more precise terms there and ‑ ‑ ‑

KIRBY J:   Well, they were examining this unfortunate applicant’s knowledge of Christianity in a way that a lot of Australians would not have been able to pass.  I mean, it is not unreasonable that his Honour was referring to that.  I must say, I was shocked to see the way he was being examined on his depth of knowledge of the numbers of books of the Bible and the basic doctrines and detailed doctrines of Protestantism, I mean really.  Have we really come to that?  I was very surprised and I am not surprised at what his Honour says there.

MR BASTEN:   Justice Gray said that that was inappropriate and yet wanted the matter to go back to this member.  But the answer may be, your Honour ‑ ‑ ‑

KIRBY J:   Somebody else might take the same view, “I have to test and examine this man’s knowledge about the bodily assumption and all the other theories of religion.”  I mean really, not many Australians nowadays could pass those tests, I can tell you.

MR BASTEN:   If the question is though whether the constraints imposed on the exercise of his religious beliefs and practices in China amount to a form of persecution on the basis of religion, it may be necessary to understand what he does treat as part of his religious beliefs and practices, because they may not touch on them.

KIRBY J:   Yes, but getting into the number of books of the Bible and the names of the saints and so on seems to be stretching it a bit.

MR BASTEN:   I think the Tribunal member thought one would be sufficient to give some indication, but I do not think there is any issue about that, your Honour, with respect.

KIRBY J:   Well, this is what presumably was going through the mind of the Full Court when they gave their directions.  They did not want this applicant to be subjected again to the same sort of interrogation about his detailed knowledge of Christian doctrine.

MR BASTEN:   The applicant wishes to have his application dealt with according to law and the question is whether or not it can only be dealt with according to law by the Tribunal member who has considered it.  May I just note one other passage at the end of paragraph [5] in Applicant C.  I do not think this is inconsistent with anything that was said by the Full Court in the judgments in this case.  His Honour said:

The majority considered it inappropriate that the court should give a direction that the matter be referred back to the RRT constituted by the member who made the decision, in case there were circumstances, including a view by Mr Wang, that ought to be considered before such a course was ordered.

With respect, one is entitled to ask, “What is the relevance, in legal terms, of Mr Wang’s view in whether or not such an order is required?”  That actually reflects what is said in paragraph 112 in the judgment of the Full Court at page 212 of the appeal book.  If that is relevant, might I also note, as I intended to do originally, that neither in the orders sought at page 13 on the review, nor on the appeal to the Full Court at page 165, did Mr Wang, the respondent, seek any such order. 

Just for completeness, because I was not involved in the hearing of the appeal, in the supplementary appeal book at page 7 at line 40 Justice Wilcox noted that the majority did not think it appropriate to make a direction in that form:

as the matter hadn’t been averted to at the hearing of the appeal ‑ ‑ ‑

KIRBY J:   Where is this, I am sorry?

MR BASTEN:   I am so sorry, page 7 of the supplementary thin book at line 40.  So that the direction was apparently a proposal of the Full Court itself which found its way into order 4 as originally made which gave rise to the order 3 under review.

KIRBY J:   I know that there is not a clear indication of when the Principal Member decided and why but there is some suggestion in the papers that I have read that the position was that the then member of the Tribunal is now based in Melbourne or was always based in Melbourne and the applicant is based in Sydney.  Is there a facility or can we know whether there is facility of video links to Melbourne?

MR BASTEN:   Yes, there certainly was at the time that the original hearing took place, your Honour.

KIRBY J:   Is that commonly used in IRT matters, video links, as is occasionally used by this Court?

MR BASTEN:   It is used on occasion.  Whether it is common or not ‑ I am aware of cases in which decisions have been made in one city where the people are in detention, for example, in another.

KIRBY J:   Yes, of course.

MR BASTEN:   Your Honours, just in order to complete what I was saying in terms of principle, might I just very briefly take your Honours to the authority of the Full Court in Northern New South Wales v The Australia Broadcasting Tribunal 27 FCR 39. There appear to be three circumstances envisaged in this case which might give rise to a negative order, namely, one that the Tribunal be reconstituted for the further consideration of the case. That was the order which was made by the trial judge in this case and which was challenged on appeal. This was not a challenge initially which was based upon the bias of the member, it was a procedural fairness issue, but a second possibility for making an order ‑ and, I am sorry, I conceded that that might be an appropriate case for a negative order ‑ the second possibility is that the Federal Court might envisage, on the basis of what it had found as to the fact finding by the Tribunal member, that there would be an apprehension of bias if the same member reconstituted the Tribunal or continued to be the Tribunal. That appears to have been the basis on which the trial judge dealt with this matter and that appears at page 40 at about point 5 at the end of the extract from his Honour’s judgment and it seems to have been confirmed by an extract at page 42 at about point 6. Now, we say nothing about that case.

It may be appropriate in some cases for a person to ask that the Tribunal be prohibited from proceeding if there were a reasonable apprehension of bias.  Whether that application should be made first to the Tribunal rather than the Federal Court is a matter which need not detain us.  But there is a third possibility relied on by the Full Court in this case, namely, that it is sufficient to order reconstitution ‑ and this at the bottom of page 43 at about point 8 where in the last two lines of the long paragraph:

justice is in general better seen to be done if the court or the Tribunal is reconstituted for the purposes of the rehearing.

We, with respect, say that that goes too far because it appears to go beyond the concept of “justice according to law”, the phrase considered by this Court in Thiyagarajah.

KIRBY J:   It depends on the rigidity of your view of justice according to law.

MR BASTEN:   It may depend upon ‑ ‑ ‑

KIRBY J:   You are putting forward a very rigid view of “justice  according to law”, at least according to my opinion.

MR BASTEN:   Well, I am seeking to do no more in that respect than rely on what this Court said in Thiyagarajah and to revert to the basis upon which the Full Court has authority to interfere or intervene so as to set aside the decision of the Tribunal, but I will not take your Honours back to those propositions.

KIRBY J:   I notice Justice Burchett at the end of his judgment drew attention to the fact that the important thing is 16(1)(b), which is in similar language, and the fact that it is a question of giving directions, not, as it were, making orders.  He rested it on the directions power.

MR BASTEN:   Yes.  In this case, the court actually made an order in terms rather than resting precisely on the directions power, although I think they intended to exercise the power in (1)(b).

Your Honours, I think those are the only points I wanted to make in relation to the question of power.  If there is a discretionary power vested in the court, then largely for the reasons I have already traversed and those which are set out in the written submissions, we say this is not an appropriate case to exercise the power.  It was intended for a purpose which could not be executed directly, namely to preserve findings of fact which were thought by the court to have been made, and if that could not be done properly directly, as the court conceded it could not, then it is not an appropriate case to seek to do indirectly by preserving for the decision of one particular member the further consideration of the matter.  May I rely on our written submissions in relation to the discretionary argument and that is what I need to say.

GLEESON CJ:   Yes, thank you, Mr Basten.  Yes, Mr Gleeson.

MR GLEESON:   Your Honours, what I would wish to cover orally are three topics.  The first topic are certain aspects of the facts, the second is the question of power, and then there is the question of discretion.  If I could deal with them in that order.

Could I ask your Honours to go to our written submissions to paragraph 3.  In paragraph 3(b) we identify that the Tribunal was originally constituted for the purpose of the review by Ms Boland.  Presumably that was done under section 421, although there is no evidence of the written direction by the Principal Member to that effect.  In paragraph (c) we refer to the reasons and decision being published.  Could I refer your Honours to section 430 of the Act which indicates that when a decision is made there must be a written statement which deals with four matters.  Apart from the decision itself, the statement must set out reasons, findings of fact and evidence.

KIRBY J:   Mr Basten rather contests that there were findings of fact, but under the Act you remind us there is that template provision that obliges ‑ ‑ ‑

MR GLEESON:   Yes.

KIRBY J:   Did the Tribunal member fail on this score, too?

MR GLEESON:   Our submission is that there were a number of findings of fact made by the Tribunal member which were set out in the reasons which was as required by section 430.  Now, in carrying out that statutory task the Tribunal member would be governed by the overriding obligation under section 420.

We would direct attention to the objective itself under section 420(1) which includes notions of fairness, justice, economy, informality and speed.  Perhaps more importantly, subsection (2)(b) that the Tribunal:

must act according to substantial justice and the merits of the case.

What we would take from that is that while it is of course correct that the Tribunal was not carrying out a judicial function, there are elements of similarity and there are elements provided for by the statute which require the giving of reasons, the making of findings of fact, references to the evidence and ultimately an attempt to do substantial justice.

GLEESON CJ:   Now, those admonitions are all directed to the Tribunal.

MR GLEESON:   Yes.

GLEESON CJ:   And the opening words of section 430 include the reference to the Tribunal making the decision.

MR GLEESON:   Yes.

GLEESON CJ:   That may have some bearing on a matter that was earlier discussed.

MR GLEESON:   Yes, it may, your Honour.  I have to come to that on the question of power.  I dwell on it at this moment only to say that if a court exercising judicial review functions sets aside a decision, what it has set aside is the decision under section 430(1)(a).  That does not render the slate clean and remove the fact that there have been publicly announced reasons, findings and references to evidence.

HAYNE J:   What lies behind that metaphor you employ?  What is the significance to which you say is to be attached to that public announcement of findings on material questions of fact?

MR GLEESON:   The significance, your Honour, is that when we come to the judicial review process under section 476 it is correct that the Court can only intervene if it finds one of those grounds to be made out on a judicial review standard.  In the present case the Full Court found that grounds were made out under paragraphs 476(1)(c) and (1)(e), and that is made apparent by Justice Merkel’s judgment at appeal book page 209.

HAYNE J:   The consequence of that finding was, amongst other things, an order under 481(1)(a) quashing the decision.

MR GLEESON:   Yes.  When the court, having done its task under section 476, comes to section 481, it then has to decide which one or more of these orders are the appropriate orders to make in the light of the errors which the court has found.  That is the first matter that the court takes into account as part of judicial review, which is, “What are the errors we have found?”.  The second matter is what is to happen with the further review?

Now, with these two matters we would submit properly in mind as part of judicial review the court may make an order under paragraph (1)(a) under section 481 setting aside the decision in whole or in part.  Now, the actual decision here was to in effect uphold the delegate’s refusal of the application for the visa ‑ ‑ ‑

GUMMOW J:   Wait a minute.  What was the order?

MR GLEESON:   The order of the Full Court is at page 214.  That is an order which was directed to the decision ‑ ‑ ‑

GUMMOW J:   Set aside the decision ‑ ‑ ‑

MR GLEESON:   Yes, and the decision is found at page 11 at line 30.  Now, because the nature of the decision was, as set out on page 11, to affirm the delegate’s decision not to grant a protection visa, the appropriate order under section 481(1)(a) would have to be an order setting aside that decision in whole.  There is no part of that one‑line decision that can be left alive.  So when that is being done the decision has gone, but what is left are these matters.  There are still left ‑ ‑ ‑

GUMMOW J:   Well, this is your problem, Mr Gleeson.  If you are right in the way you want to construe 430(1) that (c), for example, has some life other than the life given it to support the decision, you are in trouble with validity.   The Tribunal in those circumstances may be in Chapter III trouble.  One would not ordinarily construe it to achieve that peril.

MR GLEESON:   What I was seeking to put to your Honour was that ‑ ‑ ‑

GUMMOW J:   You want to give these findings of fact some life which survives the destruction of the decision for which they were made.

MR GLEESON:   Your Honour, we do not seek to give them the benefit of issue estoppels.

GUMMOW J:   You may say that, but ‑ ‑ ‑

MR GLEESON:   What we seek to do is to say that under paragraph (a), the court makes the appropriate order to set aside the decision, and that must be the whole of the decision in this type of case.  Then, under paragraph (b), the court considers what is to happen to the matter to which the decision relates.

Now, because the application for review has now not been fully determined it needs to be further considered, and that is the language of paragraph (b), that the matter would referred “to the person”, which I will come back to, “who made the decision for further consideration”.

GUMMOW J:   The person who made the decision is the Tribunal.

MR GLEESON:   Your Honour, I want to come to that in just one moment.  What I am seeking to indicate at the moment is that, in answer to Justice Hayne’s question, that what has happened under section 430 feeds into what the court does under section 476 and section 481 and when the court decides under section 481(1)(b) to refer the matter back “to the person . . . for further consideration, subject to” directions, in our submission, it is part of the judicial power with which the court is properly seized to determine and give directions concerning the nature of the further consideration.  Now, the further consideration may vary depending upon the nature of the error.

HAYNE J:   You are using the expression “further consideration”, as I would understand you, in the sense of continuing something that is partly done.

MR GLEESON:   Yes, and that will depend on the  ‑ ‑ ‑

HAYNE J:   That premise is not one which I regard as self‑evidently true.  Once the decision is quashed or set aside, what is it that is left?  What is it that is partly done?

MR GLEESON:   What is partly done is that this applicant has properly invoked the statutory procedures.  He has submitted his material to the Tribunal.  He has been heard.  As a result of that hearing certain findings of fact have been made; reasons have been published.  What has not been done is that the ultimate legal question, although correctly posed, has not been answered.

Now, what needs to be done by way of further consideration in Mr Wang’s case is this:  the Tribunal, leave aside for the moment how constituted, needs to resume the consideration of his application for review and that means, first of all, taking the findings of fact that have already been made.  Secondly, as the Full Court made clear, to the extent the current findings of fact leave implicit matters which need to be made explicit, that needs to be done.  Thirdly, to the extent that the parties wish to put further material before the review, in particular, for the reason Mr Basten has adverted to, that the decision must be made on the facts at the date of the decision, that is something which they would  ‑ ‑ ‑

GUMMOW J:   So these findings of fact could be overturned ‑ ‑ ‑

MR GLEESON:   Your Honour, I would not accept the word “overturned”, and let us take an example here in the present case.  One of the issues ‑ ‑ ‑

GUMMOW J:   Well, overturned on consideration of further material.  After all, the question of whether this gentleman is a refugee is going to be decided at this date now fixed in the future for consideration.

MR GLEESON:   That is correct, your Honour ‑ ‑ ‑

GUMMOW J:   Right.

MR GLEESON:    ‑ ‑ ‑but there are a number of aspects of the findings.  One of the examples given was, was the man being truthful when he said he professed the Chinese Protestant faith in the church in which he said he practised?  Now, he put his story on that topic before the relevant Delegate and he obtained a finding of ‑ ‑ ‑

GUMMOW J:   Suppose further material comes to the attention of the Tribunal which suggests it is all a charade?  I am not saying it is this case, but it could happen and we know it does happen and I have seen it happen in cases in which I have sat in the Federal Court.  Are you saying that justice cannot now be done and the justice that has to be done would be a denial of the application?  Justice cuts both ways.  The scales have to be brought down at this future date.

MR GLEESON:   We are substantially in agreement with your Honour.  What would occur is that the process would resume, which was being conducted properly and went off the rails at a certain point.  Now, in the course of that, if the Minister or if the Tribunal of its own accord said, “We have information which we believe fundamentally upsets a matter upon which we were earlier satisfied”, the Tribunal would of course have its statutory duty to determine whether to receive that material and if so, to make the proper findings based upon it.

That is a matter which the Tribunal would carry out.  Coming back to the pure question of construction, statutory construction, and what is the judicial power that the court is seized with under section 481(1)(b), we submit that a power to remit to the relevant person for further consideration, subject to directions, does entitle the court to go beyond simply sending the matter back and it allows the court to make appropriate directions about the nature of the further consideration, being directions which will do justice according to law in the light of the errors found.

HAYNE J:   Now, is the attribution that you give to the status of findings under 430(1)(c) consistent with the decision in Yusuf and Israelian, where, as I would understand the decision in Yusuf and Israelian, what 430(1)(c) requires is for the Tribunal to set out findings of fact reflecting the subjective thought processes of the particular decision-maker reaching the particular decision in question.  I understood Yusuf and Israelian and to hold that 430(1)(c) does not oblige findings of fact on some objectively determined set of issues, but rather is a requirement for the decision‑maker to record what he or she has taken into account in getting to a decision.  Now, on that understanding, once the decision goes, so too do the findings because they are inextricably intertwined.

MR GLEESON:   With respect, no, your Honour.  The decision is one directed to the three or four questions required by the Convention in determining whether a person has the appropriate status.  Now, that is what the decision-maker was addressing herself to.  She has recorded her ultimate decision, which is “No”.

HAYNE J:   And she has recorded the findings she made that led her to the conclusion that the question should be answered in that sense.

MR GLEESON:   Yes.  Your Honour, could we test it in a different example.  Assume the matter were simply remitted back to the Tribunal and it was heard by the same member.  What would that member do?  The member would do exactly what we are submitting, namely, the member would resume the review.  We would submit it would be perfectly proper for the member to have regard to those previous reasons and findings, provided the member was doing so for the purpose for which the matter had been remitted and that purpose being to decide the application in accordance with law, bearing in mind the Full Court’s decision on various questions of law.

GUMMOW J:   If it went back to somebody else, another Tribunal member, 422A(3) would enable recourse, would it not, to this earlier material?

MR GLEESON:   If it goes back to ‑ ‑ ‑

GUMMOW J:   I mean, assume this Tribunal member dropped dead.

MR GLEESON:   If the Tribunal member drops dead, then section 422(1)(a) will come into play and in that case, as a matter of necessity, the new member will have to continue to finish the review and will be entitled, although not obliged, to have regard to what is described as the record of the proceedings.  Now, there is a question ‑ ‑ ‑

GUMMOW J:   Yes, it says “may”, I realise that – there is lots of law about that – but you would be pretty strong to disregard it, I think.

MR GLEESON:   Yes, and there would be a question ‑ ‑ ‑

GUMMOW J:   You would have to have reasonable grounds for not doing it.

MR GLEESON:   Yes, that is so, your Honour, and there would then be a question whether the record of the proceedings for that purpose included not just the documentary papers and any transcript of Mr Wang’s oral statements, but whether it also included the 11-page statement of reasons of Ms Boland.

GUMMOW J:   Why not?  Why do you want to say not?

MR GLEESON:   I do not want to say not.  I want to say there is at least a question there, your Honour, as to whether that is part of the record.  Now, if one takes the view that it is part of the record, which is probably the better view, then what that tends to indicate is that the setting aside of the decision does not remove from existence Ms Boland’s 11 pages of reasons.  Your Honour, if they are part of the record ‑ ‑ ‑

HAYNE J:   But even if they are not, would 424(1) not lead to the same result?  Are we not at the moment straining at a gnat?

MR GLEESON:   It would probably lead to the same result, your Honour.  For the sake of the argument I am putting, though, what that indicates is that one does not say that a setting aside of the decision, a one-line decision, means that the 11 pages of reasons and findings cease to have any relevant effect for the purpose of the review.  The question is, what purpose do they properly have in the context of the review?

GUMMOW J:   No, the question is, review by whom?

MR GLEESON:   If it be accepted that either under section 422 or 424 in the example that we are contemplating they are material which the Tribunal can and probably should have regard to, what that simply illustrates, your Honour, is that the reasons and the findings, although they originally had the statutory purpose of section 430, namely, to elucidate in the manner your Honours have indicated the actual decision, although the decision has gone, they have not gone.

GUMMOW J:   Yes, but I think what you have to come to, Mr Gleeson, is this:  The question at the end of the day may be, what were the parameters of this discretion that the Federal Court had?  Did it misdirect itself because it did not take into account the utility that could still be derived under these sections we have been looking at if the matter were left to proceed in the ordinary way by a direction by the Principal Member?  Why were they wedded to this idea that it was this member or nothing, or did that not misinform their discretion?

MR GLEESON:   Your Honour, that takes me to “discretion”, and I will have to come back to some questions ‑ ‑ ‑

GUMMOW J:   Do not let me interrupt you, but I think that is what you ‑ ‑ ‑

MR GLEESON:   And I will have to come back to some questions of power.

GUMMOW J:   Well, do it now, if you wish.  I did not mean to interrupt you, but that is why it was put into these sections, to give you the chance to think about it.

KIRBY J:   If I could add to Justice Gummow’s question, do you necessarily tie yourself to the utility as a matter of law as distinct from the utility in terms of the impression of the inclination of the member of the Tribunal?  I mean why are we pussy-footing around here.  That is the reality.  Your client thought he was out in front in respect of the ultimate decision of whether he was a Christian and whether he was a Protestant and whether he had suffered, his Bibles being confiscated, thrown in the cell for four days and other things of that kind, but in the end a Tribunal member asked the wrong question.

MR GLEESON:   Your Honours, in exercising that discretion, in our submission, both the questions of utility and the questions your Honour Justice Kirby pointed to are all relevant matters bearing in mind section 420.  They are all part of the objectives under section 420(1) and they are all encompassed by a substantial justice and the merits of the case.

The practical realities, which evidently motivate Mr Wang, are that he has been through an extremely difficult process of attempting to establish his protection visa.  In the course of that he has managed to persuade the relevant delegate of a number of crucial facts.  Had justice been done according to law the first time around he would have had an answer to his question from Ms Boland on 26 November 1999.

He says that he believes based on the findings she made, including the matters she should have made explicit, he would have obtained from her then a decision in his favour.  Also, he says, had he obtained such a decision he had the prospect that that decision would not have been subject to relevant judicial review depriving him of his victory.

Now, had there been justice according to law the first time around, he had the prospect – we put it no higher than that – that on 26 November 1999 he obtained a protection visa on unreviewable grounds.  Now, part of doing justice, according to law, we submit, is that the court was entitled to do what was available to it under the section, to attempt to put Mr Wang in as good a position as he would have been in had that error not occurred.

GUMMOW J:   Could it have given a direction that the findings of fact, under 430, not be further investigated on any reconsideration.  You have to say that, do not you?  You may be right, but if we have to stop pussy‑footing, is not that what it comes to, no matter by whom it is.  It is not just putting it back to the same decision-maker, a covert way of achieving that result?

McHUGH J:   In fact, I think you must go further, must not you, and say that the Federal Court can remit this single issue back for determination?

MR GLEESON:   Your Honour, the Federal Court could certainly have set aside the whole of the decision under paragraph (a) and then under (b) could have given directions that the only matter to be further considered would be X, Y and Z.  Whether they would be appropriate directions would be a matter to be considered.

GUMMOW J:   We want you to consider it now because we have to decide these question, Mr Gleeson.

MR GLEESON:   Yes, but, your Honour, there may be different ways of giving directions under subsection (d), all of which were available in law.

GUMMOW J:   If you do not want to answer it, do not, but what I am asking you is would such a direction of the nature I put to you and Justice McHugh put to you, is that open on a proper construction of the section?  The answer to those questions informs the case to some extent, it seems to me.

GLEESON CJ:   That is the issue Justice Stone dealt with, is it not, in the case that we were referred to earlier?

MR GLEESON:   Yes.

GLEESON CJ:   Remember the case I had in mind.  I thought we were referred to a case where Justice Stone looked at the question of whether you could ‑ ‑ ‑

GUMMOW J:   Yes, it was Applicant C.

MR GLEESON:   Yes, it was Applicant C 66 ALD 1.

GUMMOW J:   The paragraphs near the end, [92] and following.

MR GLEESON:   Yes, it is paragraphs [93] and following.  Her Honour said that it was not necessary to decide that question, that would probably require exceptional circumstances, and what her Honour then did was to take what she regarded as a less draconian and more available course to agree in the course adopted in this case.  She was prepared to make that order.  Now, when Your Honour Justice Gummow puts to me that it is the inevitable consequence of our argument that the Full Court would be able to give ‑ ‑ ‑

GUMMOW J:   I am not putting that to you.  I am just asking for an answer.

MR GLEESON:   Let me put it differently, your Honour.  I will put an affirmative submission.  We do not accept that the inevitable logic of our argument is that the Full Court is able to direct particular issues ‑ ‑ ‑

GUMMOW J:   Well, what if I thought it was the inevitable consequence of your argument?  What would you say then? 

MR GLEESON:   If your Honour thought that, we would put that such an order would be within the range of available discretion in an appropriate case. 

HAYNE J:   So there would be three kinds of order on this set of hypotheses that might be available.  “Direct that, in conducting the review” ‑ I interpolate, for my own reminder, a review to be conducted as at a later date – “direct that, in conducting the review, the Tribunal constituted by identified member X, (a) shall take to account the findings previously made by X” – one form of direction.  Next form of direction:  “shall be bound by the findings previously made by member X”.  Third form of direction:  “shall be confined to the question identified as” such and such.  Do you say that on the proper construction of the directions power in 481(1)(b) any or all of those directions are available? 

MR GLEESON:   Certainly, the first, and we also say, the second and the third, in an appropriate case.  Could I give your Honour a further elaboration of that.  If your Honours go to paragraph (c), which this Court has dealt with and indicated that the circumstances in which the court would declare the rights of the parties may be relatively confined, because that would only be appropriate where (a) the court was not intruding into a statutory function vested in the Tribunal; and (b) where the matters were otherwise sufficiently clear.  A possible order in the present case might have been an order declaring that Mr Wang was entitled to the grant of a protection visa as at 26 November 1999. 

Now, that would be an order which would be more favourable to him than any of the three examples your Honour has given.  It would be an order only made if the court were satisfied of the matters I have mentioned.  The court was not satisfied in the present case.

McHUGH J:   Just to pursue that example, the court does not make hypothetical declarations, and that is a hypothetical declaration because that is not the issue for determination.

MR GLEESON:   Perhaps I am being too brief, your Honour.  The declaration might be that Mr Wang has satisfied each of the four elements necessary for the grant of a protection visa; remit the matter to the Tribunal.  Now, the Tribunal would receive the matter with that declaration from the court and would then make its decision accordingly.  Now, this Court did not feel that the matters were so sufficiently clear in Mr Wang’s favour that it could give him what was effectively an immediate remedy.

HAYNE J:   That is turning judicial review into an appeal, surely.

MR GLEESON:   Your Honour, and that is why I have said that the cases where paragraph (c) would be exercised would be relatively rare.

GUMMOW J:   There have been such cases under the AD(JR) Act.

MR GLEESON:   Yes, there have, your Honour.

GUMMOW J:   Perhaps after lunch we might be referred to some of them.

MR GLEESON:   If your Honours please.  So we would submit that within the range of orders there would certainly be an order of the first of the three types that your Honour Justice Hayne mentioned.

HAYNE J:   That is an order which seems to me to do no more than replicate the consequences of sections 422 and 424 of the Act.

MR GLEESON:   Not necessarily, your Honour, with respect, because – let us assume that when the matter came back before the Tribunal, the member, either on his or her own volition or as urged by the Minister, said, “We wish to reagitate the basic question whether he is a witness of credit and we wish to do it not because we have new material, we just wish to conduct the sort of cross‑examination that we, for whatever reason, didn’t ask to conduct previously”.  I use the word “cross‑examination” loosely.

HAYNE J:   More than just a tad loosely, Mr Gleeson, because these are not bipartite proceedings, are they?

KIRBY J:   Yes, but there are a lot of questions asked.

HAYNE J:   By the Tribunal.

KIRBY J:   Some of them can be quite direct and searching.

MR GLEESON:   If the Tribunal member were to say, “I am going to ask a whole series of questions, to go back over the very same territory that we covered at length about whether this man is telling the truth on that topic.  I have no reason for doing so other than that I wish to be satisfied from scratch about his credit”, Mr Wang would properly be able to say, “That is a matter where I have the benefit of a finding.  Why is that matter being reagitated?”.  That is a matter of basic justice to him and it is a matter of the system being seen to be just and fair.  Now, in the practical world ‑ ‑ ‑

HAYNE J:   They are just slogans, Mr Gleeson.  They are just slogans.  They need to be put in the form of some legal proposition.

KIRBY J:   Justice is not just a slogan, as far as I am concerned.

MR GLEESON:   I have put to your Honours several times section 420 as providing a statutory context for justice in these review applications, and when I make that submission I am making it in the context of section 420.

KIRBY J:   I do not see why you have to go as far as this.  The direction to which the section refers, at least possibly, could simply be a direction that in all the circumstances it be heard by the particular Tribunal member in the expectation that, save for some new evidence or new material, the matter will pick up generally from where it was left off when it went off the rails.

MR GLEESON:   That is so, your Honour.

KIRBY J:   That is all that you need to have and that is all that the Federal Court, as I understand it, directed or, as it did, ordered.

MR GLEESON:   We put the submission that that type of approach which the court adopted is perfectly within section 481(1)(b).

GLEESON CJ:   Is that a convenient time, Mr Gleeson?

MR GLEESON:   If your Honour please.

McHUGH J:   Just before we adjourn, you might have a look at Park Oh Ho 167 CLR.  I think this Court made declaratory relief in Park Oh Ho.

MR GLEESON:   Yes, if your Honours please.

GLEESON CJ:   We will resume at 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ:   Yes, Mr Gleeson.

MR GLEESON:   Your Honours, if I could complete a couple of aspects of the facts, if I might briefly.  If I could go to paragraph 3(d) of our written submissions, there is a reference there to the findings of fact that Ms Boland made favourable to Mr Wang.  Could I give you a reference where those findings are found.  They are at pages 7 and 8 of the appeal book.  Could I give a reference to the pages in the Full Court’s judgment where they analysed the nature of those favourable findings, and that is at page 206 and 208 in the judgment of Justice Merkel, page 181 in the judgment of Justice Wilcox and pages 183 to 184 in the judgment of Justice Gray.

KIRBY J:   Could I just ask, because I would like to get it clear in my mind, is it your contention that those findings would bind the Tribunal member when it went back?  I would find that a very difficult notion.

MR GLEESON:   No, we do not put that, your Honour.  What we put is that when it goes back to the same Tribunal member that member will pick up where she left off.  She will be able to have the benefit ‑ ‑ ‑

KIRBY J:   She could not do that if there was some new evidence, which is perfectly possible.

MR GLEESON:   No, if there was new evidence, new material, new information, she would have to properly consider that information and we accept that on established authority the decision will have to be made at the date of the determination.  Therefore, if there have been changes in circumstances, the Tribunal member could not shut any of that out.

HAYNE J:   If the Tribunal member is not bound, then what is the nature of the exercise other than an exercise in choosing the Tribunal?

MR GLEESON:   Your Honour, the Tribunal member will pick up the task and work towards the conclusion under section 430.

HAYNE J:   That is a prediction about likely human behaviour, not a statement about the quality of the order that has been made by the Federal Court.

MR GLEESON:   If your Honour is asking whether the Federal Court could have come to an absolute conclusion that the result obtained if it went back to the same member would be different and more favourable ‑ ‑ ‑

HAYNE J:   No, I am asking about the fact that the Federal Court made the order it did.  What is the point of the order, do you say, if there is no binding effect?

MR GLEESON:   Well, your Honour, to answer to that question can I contrast the two hypotheticals.  I will deal first with if it goes back to the same member and then if it simply goes back to a new member.  If it goes back to the same member that person will continue the task of reviewing the decision with a view to reaching a new document that complies with section 430.  That will contain a new decision and as your Honour put this morning will contain the particular subjective factual findings and reasons and evidence which underlay that decision.  But in that course, the existing member will be entitled to take into account all of the findings that she has made to date, and if it be the case that nothing new comes up ‑ ‑ ‑

GUMMOW J:   But even if it does not?  Suppose the Tribunal member says, “I have thought back it again.  I am not functus.  I have changed my mind”?

MR GLEESON:   Let me deal with the situations, if I may.  Let us assume, first of all, that no further information comes to the attention of the Tribunal member beyond what was there previously.  So the Tribunal member says, “Last time I had made findings of fact, I had formed reasons, I had referred to evidence.  Last time I got to asking the right question, I failed to ask it.”

Now, what the Tribunal member must do in accordance with law is complete the task and answer that question.

GUMMOW J:   That assumes the task is partially completed which is why I asked you the question?

MR GLEESON:   Your Honour, what will occur ‑ ‑ ‑

GUMMOW J:   Partially completed in the sense that that part which has been repleted is fixed.

MR GLEESON:   We do not put that, your Honour, because it may be that new material comes to light, but even if it does not, even assuming no new material comes to light, what the Tribunal member has to do is to construct a decision with reasons and findings which complies with the duties under section 430.  Now, if the Tribunal member ‑ ‑ ‑

GUMMOW J:   Suppose the Tribunal member, genuinely and conscientiously, thinks about it again, and says, “I have changed my mind.  I am mandated to give effect to what I believe in this respect by the Act.”

MR GLEESON:   If the Tribunal member said, “I have simply reflected on this matter over several years.  I have now decided I should not have believed a word Mr Wang said to me about his basic belief in Christianity and what I now propose to do is to make a series of findings that he has failed at first base.”  The duty of a Tribunal member under section 430 would be to record those findings of fact to record the reasons, and inevitably those reasons would have to expose how the Tribunal has come to such an about face and the findings of evidence.

Now, that is why I say we cannot speak in absolutes, your Honour.  If one is speaking of purely theoretical possibilities, that type of example I have given may be theoretically possible.  In the real world, the prospect of that occurring, on that scenario, would be close to nil.  Now, all the Full Court was saying was, looking at some degree of practicalities, realities and expectations ‑ ‑ ‑

GUMMOW J:   You say “close to nil”, but when I was at the Bar I counted, in interlocutory proceedings, judges who wavered from one interlocutory step to the next.  It was so irritating at times, but there it was.

KIRBY J:   Did you say, including his Honour?

MR GLEESON:   I said, including judges, and I was cut off and I could not complete the sentence, your Honour.  I was going to say, not usually including judges, your Honour, who, on interlocutory proceeding made a finding of credit in favour of a witness ‑ ‑ ‑

GUMMOW J:   You cannot make interlocutory findings of credit.

MR GLEESON:   Well many judges do.

KIRBY J:   But in any case, your submission is anchored in the statute and it contemplates, if you are right in your construction, further consideration; now that means further consideration of something, and that breathes at least that life into the something that contemplates further consideration of it.

MR GLEESON:   Yes.

GLEESON CJ:   Mr Gleeson, I am not suggesting that the proposition I am about to state is wrong, I have no view on it but I am suggesting it may require to be unbundled.  The proposition that seems to have been behind the decision of the Full Court is that because Mr Wang got so close to a favourable decision the first time, justice requires that when the Tribunal has another go at it, he should start off as close to success as he came on the last occasion.  That may be right, but there seemed to be some assumptions in it.

MR GLEESON:   Well, it does need some unbundling, with respect, your Honour.  Could I deal with the second side of the hypothetical:  what happens if it goes to a brand new member?  The new member has their own task under section 430 of making his or her own findings with reasons with references to evidence.  Now, even assuming that member pays regard to everything that had happened to date to the findings that were made, the new member might choose to take a different view for the reasons that Justice Gray contemplated.  They could be he or she takes a totally different view of credit based on observation of the witness giving the same information.

KIRBY J:   But surely - at least there is something in the statute that requires otherwise, the new member will have to discharge the new member’s statutory functions for him or herself.

MR GLEESON:   That is what section 430 would require, we say.  So the new member could say, “My own view on credit is the exact opposite.  Not because I have received new information.  I have just heard the man say to me what he said previously two years ago to someone else and I don’t believe a word of it.”  The new member may say, “I have decided that all this evidence should be weighed in a different way and the net result is Mr Wang does not have the requisite degree of commitment to the Protestant faith in China.”  Now, all the Full Court was saying was ‑ ‑ ‑

KIRBY J:   Please, Mr Gleeson, the Christian faith of the Protestant persuasion.

MR GLEESON:   If your Honour pleases.  I should return more squarely to your Honour’s question.  Mr Wang did get very close to the success he achieved.  He obtained findings of fact, either implicitly or explicitly, which the Full Court considered might well have entitled him to an affirmative answer to the correct question had it been answered.  That is what he achieved.  Now, if the matter goes back to the same member, in the real world there is a reasonable basis to think Mr Wang goes back to somewhere fairly close to where the error infected the process.

GLEESON CJ:   That is the entire foundation of the Federal Court’s decision, as I understand it.

MR GLEESON:   Yes.  Now, there cannot be absolutes or certainty and he can never be put back in exactly the same position for the reason the authorities say, that his application must now be decided today, not two years ago.  So he can never receive a perfect form of justice to remedy the error that occurred.  But if he goes back to the same member, he receives a chance at least of being close to the same form of justice.  What the Full Court is saying is, “If he goes to a different member, we perceive at least a risk that the end result for him is worse than if the legal error had not occurred in the Tribunal.”

Now, that raises two questions.  One is, was it fanciful for the Full Court to think there was that risk?  We submit not fanciful.  The second question is, if it was more than a fanciful risk, was that a relevant consideration for the court?

GLEESON CJ:   Did the interests of justice require that the Full Court should deliberately set out to minimise that risk?  That is what they did.

KIRBY J:   Is that the question or is it:  did the interests of justice permit?

MR GLEESON:   We would put it this way:  did the interests of justice permit the Full Court to take into account that as one of a number of matters, an important matter, in the exercise of the discretion?

GLEESON CJ:   What else did they take into account?

MR GLEESON:   Clearly enough they would have taken into account the simple practicalities and economies that section 420 speaks of because if one person is most of the way down the task, has read the material, has done the analysis of credit of the witnesses and has formed findings, that person is clearly far further advanced than someone who starts from scratch.  If someone starts from scratch, there will be increased time, delay, cost, uncertainty, and the ultimate delay in delivering justice in the particular case.  The Full Court has not spelt out each of those matters line by line but, in our submission, we ‑ ‑ ‑

GLEESON CJ:   Did it mention them?

MR GLEESON:   We would submit that they are implicit in what the Full Court has said and part of our submission to this Court is that in a case like the present where the applicant has almost achieved victory when the legal error has intervened, it would be a perfectly ordinary exercise of discretion for reasons of economy, speed, as well as the particular factor that the Full Court referred to, that the matter go back to the same Tribunal member.  The notion of someone starting anew, reading all the material, trying to form a view on credit, trying to weigh the evidence, we would submit would ordinarily not be the likely exercise of the discretion.  The exception is where there are bias problems.

One of the things the Full Court did specifically say was there was no suggestion here by either party that there would be any apprehension of bias if it went back to the same decision‑maker.  So they seem to have proceeded on the basis that there would be good practical reasons for the same decision‑maker, number one; number two, there were no bias problems; and, number three, justice in the particular case in remedying the error suggested that Mr Wang should not be put at the risk of, in short, going backwards before the Tribunal.

Your Honours, those matters in Justice Merkel’s first judgment, it is at page 212 and we would draw attention to line 10 where his Honour said that to refer it to a differently constituted RRT “might deprive the appellant of favourable findings”.  That is put at the level of a risk.  It is not put at the level of either certainty or at the level of saying that the findings may not have to be revisited in the course of the further consideration.

GUMMOW J:   What were the particular favourable findings, I wonder?  They do not seem all that firm, really.

MR GLEESON:   Yes.  If your Honour goes to, first, the judgment of Justice Gray at page ‑ ‑ ‑

GUMMOW J:   No, in the Tribunal.

MR GLEESON:   In the Tribunal?

GUMMOW J:   Yes, that is what I mean.

MR GLEESON:   At pages 7 and 8.  So the heading “FINDINGS” commences on page 6 and on page 7 at line 20 there is a finding that his knowledge of Christianity was:

somewhat basic, a fact part explained by –

a circumstance mentioned and by the fact that:

he is not a religious leader or preacher.

Then there is a finding that he has:

provided sufficient information on his beliefs and activities for it to be feasible that he has a rudimentary knowledge of the Christian faith and that he spent some time as a member of an unregistered congregation . . . The Tribunal also accepts that since his arrival in Australia he has continued to practise his faith as a member of the Chinese Presbyterian Church.

Then at that point the Tribunal posed the relevant question.

Now, the next finding is that in the course of, in fact, going off on the wrong question, the Tribunal does accept that the Human Rights Watch/Asia Report of 1997 provides accurate material about the position in China.  At the foot of that page, at line 55, last sentence:

The Tribunal accepts that this was a stiff penalty –

and that is a reference to his claim that he was detained five times between 1995 and October 1996.  So that is a finding that he suffered a stiff penalty.  There is then a finding:

he was released each time without ever being prosecuted.

There is then some general findings about what happens in China, and your Honours will see in the Human Rights Watch Report, which the delegate apparently accepts as accurate, at line 17 there is a statement:

Failure to register can result in the imposition of fines, seizure of property, razing of ‘illegal’ religious structures, forcible dispersal of religious gatherings, and, occasionally, short term detention –

So he therefore has findings, one, about his faith; two, about individual treatment carried out on him in the past; and three, findings as to what in general the Chinese Government does to members of the unregistered Protestant Church.  So that is three categories of findings where we would submit ‑ ‑ ‑

HAYNE J:   And the third – that is the country material – is very time‑dependent, is it not?  The question is:  what is the state of play at the time of decision?

MR GLEESON:   We accept that on the basis of the existing authorities.  What that would mean is, your Honours, that of course that would be a classic area where, if there was up‑to‑date material showing the position was better or worse, one would expect Ms Boland to take that into account.  But what she would do is, we would submit, start with a view, “One, he has satisfied me he’s a member of this faith and continues to practise that faith in Australia; two, he has suffered certain incidents which are set out; three, this is what happens in China”.  Whether that gets him a favourable answer to the ultimate question is the matter for Ms Boland, but what we ‑ ‑ ‑

HAYNE J:   But is she to begin from the proposition that it is feasible that he has a rudimentary knowledge?  That seems to be starting your client behind the line rather than ahead of the line.

MR GLEESON:   Your Honour, if the word is construed with the finest degree of technicality of some lawyers, one might interpret it as your Honour has put.  What Justice Gray made very clear was that there are both express and implicit findings in this judgment.  One of the very things he put proper ‑ ‑ ‑

GUMMOW J:   Implicit findings.  That is not good enough.

MR GLEESON:   What Justice Gray said was that Mr Wang has the benefit of some explicit findings which are clear.  In some areas, he says, it is implicit what the findings are.  An example he gives is the reference to the Tribunal accepting it was a stiff penalty.  He says what is implicit in that is that they believe him that five times he was detained and locked up.  One of the very benefits of it going back to Ms Boland is that she can, to the extent there is any doubt, make explicit what is implicit.  We would submit that that is a perfectly proper judicial purpose for the order, that what is implicit be made explicit by the very person who made those findings.

If I could move on, your Honours.  The next factual matter – and I am dealing with paragraph (h) on page 3, was the question of the dispute which your Honour the Chief Justice raised this morning, “What was the dispute?”

GLEESON CJ:   And who are the parties to it?

MR GLEESON:   And who are the parties to it?  Our submission is that the effect of the Full Court order was that if the question of constitution could be resolved consensually between the applicant, the Minister ‑ ‑ ‑

GUMMOW J:   And the Minister?

MR GLEESON:   And the Minister, and to the extent relevant the Tribunal, then the liberty to apply would not be activated.  When I say, “the applicant and the Minister” although they are not locked in contested litigation before the Tribunal, they are parties to contested litigation before the court, and they are the two classic parties who might have something further to say about constitution.  Now, the third possible party to the dispute is the Tribunal because ‑ ‑ ‑

GUMMOW J:   Well, the Principal Member, actually, under 421(2)?

MR GLEESON:   We would submit the Tribunal, your Honour, but what –it came about in this fashion.  It is clear from the material Mr Basten took you to this morning that when the first judgment was given in the Full Court they formed the view that the right course was probably to send this matter back to Ms Boland.  However, they had not heard submissions apparently from Mr Wang or from the Minister on that topic, nor did they know whether there was some overriding supervening factor like her unavailability which would make such an order futile.  So what they did, as is often done in a court, is to indicate a course that the court was minded to follow but give the parties the opportunity if they could not resolve the matter to come back and make submissions.

Your Honours, in the appeal book, at page 168, Mr Wang’s solicitors did the very thing that would be expected of them and wrote to the Tribunal and indicated that Mr Wang wished to take up the course which the Full Court had provisionally suggested.  Now, the evidence does not disclose that between that date and 10 January 2001, the Minister took any view on the issue.  So it seems there was one party to the court proceedings saying, “We wish Ms Boland” and the other party to the court proceedings, so far as the evidence discloses, is silent.

We then come to page 172.  Now, it is apparent from 172 a number of things.  The first is that this is not a letter from the Principal Member, it is a letter from the Deputy Registrar.  Secondly, under section 470 of the Act, the Principal Member cannot delegate powers to the Deputy Registrar.

KIRBY J:   Yes, but the Deputy Registrar is merely the amanuensis, is that not correct, informing the solicitors or your client, care of the solicitors, as to what the Tribunal has decided?  That is the usual way tribunals, as courts, communicate with litigants or people before them?

MR GLEESON:   What the letter does not do is to say the Principal Member has exercised a statutory discretion under section 422 or 422(a) and accordingly, has done the following.  As it is worded, it is a decision that has come somewhere out of the Tribunal.  It is not sure where.  What I was mentioning was that under section 470 the Principal Member can delegate powers to members but not to deputy registrars.

Your Honours, the next aspect of this letter, when one looks at the first paragraph – and this is the only reason that is given for why the changes occurred – is that it is said that his address is in New South Wales and his case is now being handled by the Sydney Registry.

We would make two observations.  The first is Mr Wang’s address was always in New South Wales.  He had filed his application in New South Wales.  That is at page 60.  The Tribunal had chosen to earlier move him to the Victorian Registry, that is page 66, and his matter had originally been heard by video, with Ms Boland, in Melbourne.

KIRBY J:   Is that demonstrated on the record?

MR GLEESON:   It appears from the discussion in the supplementary appeal book which occurred before the Full Court when the matter came back, that Justice Wilcox was proceeding on the basis that the matter had been by video link.  I refer for example to page 11 of the supplementary book.  Your Honours, I will wrap up this document quickly.  That is the only reason that is given for why there is a change.  Two things follow from that.  The first is that the stated reason does not satisfy either of sections 422 or 422A.  It does not come within the areas where the Principal Member could reconstitute.

GLEESON CJ:   But you are not challenging the decision, are you, of the Principal Member?  The last sentence in the first paragraph of that letter, which is perhaps not expressed with total elegance, means, does it not, in effect, that in accordance with whatever are the proper procedures Member Blount has been appointed to constitute the Tribunal.

MR GLEESON:   Not quite, your Honour.  It says, “Because we have chosen to move your case to the Sydney Registry, Member Blount has been appointed.”  The point we make is simply there is no evidence that the Principal Member did make a decision.  Secondly, the reason for this decision which is, “We’ve changed your docket from Melbourne to Sydney” is not a reason which would activate section 422 or 422A in any event.

KIRBY J:   Would one not infer, reading that letter, that everything has been done in accordance with the Act and that the Registrar, who is merely the writer for the Tribunal, is informing your client that this has been done in accordance with the Act to constitute the Tribunal of Mr Blount?

MR GLEESON:   All we say, your Honour, is that if one looks at the reason given in the first paragraph, that reason could never satisfy either section.  Section 422 is about unavailability of Ms Boland and 422A has a number of hoops to be satisfied but deals with the situation there set out.  What I want to come back to is dispute, which is why I was dealing with this.  What is apparent is that by 10 January for whatever reason, by whatever means, Mr Wang desires Ms Boland, the Minister is apparently silent, and the Tribunal has decided they want Member Blount.

Now, once that state of affairs has occurred, in our submission it is apparent that the consensual solution to the constitution question which the Full Court envisaged, had failed.  From that point at least the liberty to apply became active.

GUMMOW J:   I do not see at the moment why the Minister has any role to play in the constitution of the Tribunal.  One of the reasons for setting up the Tribunal is to distance the Minister from that activity.

MR GLEESON:   Your Honour, that is certainly true in respect to the administrative decision making by the Tribunal.  What the Federal Court, in my submission, was properly doing was saying, “We have a matter where the Minister is a party and we are contemplating making an order as to the constitution of the Tribunal, which is not a self‑evident order, and it’s an order upon which the parties are properly entitled to make submissions.  We have not heard from the Minister.  We have not heard from Mr Wang.  We tell you what we think is probably the right order.  If this matter cannot be sorted out either party may come back and agitate the question before us”.

GUMMOW J:   How could it be sorted out?

MR GLEESON:   In the simple sense of consensual solution.

GUMMOW J:   Consensual solution between binding the Tribunal in some way?  How?

MR GLEESON:   As your Honour would have seen from our written submissions, we have outlined how we say it would have happened consensually.  Mr Wang has done the right thing and put forward what he wants.  The Minister is apparently silent and, therefore, presumably not opposed to Mr Wang’s course.  The Full Court has already indicated its provisional view that Mr Wang’s course is the correct one.  Now, in those circumstances if the Tribunal is content for it to be constituted as Mr Wang was seeking, there would not be any need for a further order.  The problem would be solved.  If the Tribunal, for whatever reason, said ‑ ‑ ‑

GUMMOW J:   It is a problem of the court’s own creation, it seems to me.

MR GLEESON:   We would simply submit, your Honour, that the court was acting properly in not making a definite order there and then reconstituting because people had not been given an opportunity to be heard on that specific order, providing for liberty to apply, as is often done, because often the matter will resolve itself consensually, and giving either party the chance to come back if there was a problem.

Your Honours, could I then move to the question of power.  We deal with this on pages 7 and following of the submissions.  Your Honours, clearly enough there is a question as to who is the person referred to in section 481(1)(b) ‑ ‑ ‑

KIRBY J:   Well, we have been through all this this morning.

MR GLEESON:   Yes.  We want to rest the power, firstly and primarily, upon the power to give directions as the court thinks fit.  We would submit that that power is broad enough in the appropriate case either to direct that the Tribunal be reconstituted or, in an appropriate case, to direct that it be constituted as before.  There is no reason as a matter of power why one is encompassed but not the other.  That is the primary submission on power.  The second submission, your Honour, relates to the compendious words:

referring the matter to which the decision relates to the person who made the decision for further consideration –

Now, even if the person is the Tribunal in that sentence, make that assumption, the power is granted for the purpose of that person giving further consideration to the matter.  We would submit that a power, in those terms, necessarily carries with it the power to determine whether the Tribunal should be constituted as before or differently for the purpose of that further consideration. 

We submit that the statutory purpose, which is to enable further consideration of the matter, would be thwarted if the court did not have the power to consider and, if necessary, order how the Tribunal should be further constituted.  Therefore, we submit that for both those reasons the judicial power which the court is conferred with under paragraph (b) enables the court to consider and order whether the Tribunal should be reconstituted, or remain constituted as before, or whether there should simply be a remittal to the Tribunal simpliciter.  They are the three options and we submit that all those three options are within that statutory language.

We next submit that that construction is not inconsistent with the powers given to the Principal Member under sections 421 through to 422A, that is, that it can sit easily with those powers for the Principal Member and could I briefly state why.  In respect of 421, that deals with initial constitution only.  Section 422 deals with reconstitution because of essentially, unavailability, and 422A is a highly circumscribed power to order reconstitution essentially where the existing decision‑maker is having problems carrying out the task.

GLEESON CJ:   Which is the power that is exercised when, as is usually the case, the Federal Court said nothing?

MR GLEESON:   If the Federal Court says nothing and simply says, we remit to the Tribunal, the immediate consequence of that order will be that it goes back to the Tribunal as previously constituted.

KIRBY J:   Really?

MR GLEESON:   Because the only ability for the Principal Member to reconstitute is under one of these two provisions and if there an availability problem that could come under 422 and an example of how 422 is being used, or could be used, is this.  If the Federal Court said nothing ‑ ‑ ‑

GLEESON CJ:   Which is the usual case, as I understand it.

MR GLEESON:   Yes.  Well, I am not sure that is correct, your Honour.  There are a couple of references in the cases to there having been a practice growing up of often directing that it be reconstituted because of a fear of bias applications.

GUMMOW J:   That is news to me but if that is a practice, it is a bad practice.

MR GLEESON:   Could I take your Honour’s example, if ‑ ‑ ‑

GUMMOW J:   It is not the sort of idea Sir Nigel Bowen had in mind when the AD(JR) Act came into operation.

KIRBY J:   If there were a risk of bias that would be entirely proper and usual thing, if it had been disclosed in the first hearing in the Federal Court.  I mean, we do it ourselves in this Court.  We have done it to the Family Court of Australia which is a national, federal, superior court, possibly even to the Federal Court.

GUMMOW J:   If I could finish.  You are postulating the practice which operates quite independently of bias as I understood what you say.

MR GLEESON:   All I was doing was not agreeing with your Honour the Chief Justice’s statement that the ordinary course is to simply send it back to the Tribunal in simpliciter.

GUMMOW J:   Why do you not agree with that statement?

MR GLEESON:   Because there are references in the cases, the Federal Court ‑ ‑ ‑

GUMMOW J:   The ordinary case.  This is not a bias case, Mr Gleeson.

MR GLEESON:   In the ordinary case I have to say to you I have seen nothing in the cases or in the language of these two sections which gives the Principal Member a general discretion when a matter comes back to say, “I think someone else should do it.”  It cannot come under section 422 unless there is an availability problem.

KIRBY J:   Why is not the theory, though, that the first proceeding has miscarried and therefore it goes back to taws, you start again and for the purpose of proceeding again the Tribunal Principal Member has to determine the composition of the Tribunal as he or she would at the outset of any proceeding?

MR GLEESON:   Your Honour, it is a continuation of the review.  It is being sent back for further consideration, it is not a fresh review.

KIRBY J:   That is if the Full Court gives a direction for further consideration but if it simply makes an order under A, sets it aside, I would have thought that in the normal way, just as when we set it aside, it goes back to the court a quo and that court decides how it will constitute itself and that is its business, it is not our business.

MR GLEESON:   Your Honour, if that be so that would have to be put within section 421, not as a reconstitution under 422 but as a fresh constitution.  The only point I am making is ‑ ‑ ‑

GUMMOW J:   What is the problem with that?

MR GLEESON:   If it is a matter where it is being sent back for further consideration, it is a continuation of existing review and 421 in terms contemplates a single constitution for any one review.  It does not contemplate multiple constitutions.

GLEESON CJ:   Justice Merkel I think used the expression “unavailability, et cetera”, but when administrative decisions are made within courts – and I presume tribunals – about who will constitute the court or the tribunal, all sorts of considerations other than strict availability come into account.  Somebody might want to even out the workload.  Somebody might be off colour, although strictly available.

MR GLEESON:   Your Honour, what I am putting is simply based on the language of this statute.  The scheme seems to be under 421 there is an initial constitution of the Tribunal by a single member.  That is assumed to continue for the purpose of that review, leaving aside for the moment any court orders that come in under 481.

McHUGH J:   But why do you say the power can only exercise once?  The Interpretation Act says that if you confer a power, it may be exercised as frequently as necessary.

MR GLEESON:   Only, your Honour, because re‑exercising the power is a reconstitution if it is an existing review, and reconstitution is specifically dealt with in two ways, 422 and 422A, and there is no other general power of reconstitution given.  So the theory, we would submit, of it is that for the purpose of a review there will be a member who will carry out that review from beginning to end.

KIRBY J:   I do not know why you have to get into this, because at least on one view you have this special power, it is unusual to give these directions and, at least in my understanding, if in fact the Full Court sets aside the decision of the Tribunal, then it just has to start again and the Tribunal has to constitute itself in the normal way.  It is just back to square one.  But here there was a peculiar and special and added order in the nature of the direction.

MR GLEESON:   All I need to say to round that out is two things.  I was simply seeking to address what I thought was an argument that the construction we have placed on section 481 creates an inconsistency between section 481 and these sections dealing with the Principal Member’s powers.  Our answer is that there is no inconsistency, they can sit together.  They deal with different subjects.

KIRBY J:   You say somewhere in your written submissions that the powers of the Tribunal and the Principal Member are subject to the powers of the Federal Court.  Is that something you just derive from the scheme and structure of the Migration Act or is that something that is expressly stated somewhere in the Act?

MR GLEESON:   The former.

KIRBY J:   It is the former, is it?

MR GLEESON:   Your Honours, that is all I was really seeking to do, was to rebut a suggestion that to construe section 481 in that fashion would create an inconsistency with these sections.  They deal with different subject matters.  Whatever be the truer scope and effect of 421 to 422A, they do not deprive section 481 of its power that we have outlined.  In that regard your Honour Justice Gummow referred this morning to the decision of Minister for Immigration v Thiyagarajah 199 CLR 343. We would submit that both the construction we are placing on section 481 and the use of the discretion in this case did not offend the principles in that case. That was a case where the Court held at page 357 at about the end of paragraph 34:

Here the substance of what occurred in the Full Court was the exercise of the powers in s 481(1) to require a re‑opening of the application in a fashion which avoided the operation of –

certain other sections. 

With respect, that is clearly correct where the primary application has been properly dismissed and there is no application on foot.  Unless the Minister makes a decision under sections 48A or 48B, there is then a problem with the Full Court using section 481 to get around the statute.  Our short submission is that there is no provision of this statute that the Full Court was illegitimately getting around by the decision it made.

As your Honours know, similar language to section 481 appears in the AD(JR) Act in section 16. Could I hand up copies of the Administrative Appeals Tribunal Act 1975 where the similar power is worded somewhat differently.

HAYNE J:   Which provision?

MR GLEESON:   Section 44(5) and (6).  Your Honours will see that those sections are a different way of tackling the same problem.  They produce the same result as we contend for here because subsection (6) accepts that the order remitting the case need not be for the Tribunal to be constituted by the same person but could be if thought appropriate, and it is language which does distinguish between the Tribunal and the person making the decision.  So the result that is contended for, although it is a different statutory scheme of course, we submit is not strained or unusual or unreasonable or capricious. 

KIRBY J:   I thought we were taken to a case that referred to a provision which was very similar to 483.

MR GLEESON:   Yes, that is section 16 of the Administrative Decisions (Judicial Review) Act.

KIRBY J:   I see, thank you.  That looks as though that is the source of the provision.

MR GLEESON:   Yes, your Honour.

McHUGH J:   These cases originally came under the AD(JR) Act, did they not, and then Part 8 was substituted in 1992, or am I wrong on that?

MR GLEESON:   I think that is correct, your Honour, yes.  In our written submissions then on page 9 we advance the propositions concerning the words “such directions as the Court thinks fit” and we urge that they be given no narrow view.  We then move on page 10 to the effect of the liberty to apply and I have attempted to put our submission orally on what the effect of that court order was.

McHUGH J:   What do you say the word “matter” means in 481(b) in the context of this case?  Is it the application, further consideration of the application?

MR GLEESON:   Yes.

McHUGH J:   So the power is conferred to enable further consideration of the application and, therefore, any directions must be relevant to that further consideration.  Do you accept that the directions must be such that enhance the further consideration of the matter?  Are there any directions that might detract, for example, from the further consideration that could legitimately be made?  Must they all be directions that enhance the further consideration?

MR GLEESON:   We would think that would be the aim of the directions. The directions would have in mind the errors that have been found under 476 which have justified the court intervening.  They would have in mind the nature of the setting aside order that has been made under subsection (1)(a) and then they would be directed to the best way for the matter to be further considered, having regard to the objectives of section 420.

HAYNE J:   And, in particular, in this case, I understand you to say it would be proper to give such a direction where to do so would give the applicant an advantage in pursuit of his claimed protection, the advantage given being the predisposition, but not obligation, of the person constituting the Tribunal to reach conclusions about two matters, namely, the veracity of the applicant and, secondly, some claims made by the applicant, which are conclusions similar to those reached in the process of the first failed review.  Is that right?

MR GLEESON:   I would not disagree with that, your Honour.

HAYNE J:   I use “predisposition” advisedly because it seems to be pitching us off into a review where the decision‑maker is to begin from a predisposed view.

MR GLEESON:   I do not agree with it in that sense.

HAYNE J:   That is the knife in the napkin, Mr Gleeson.

MR GLEESON:   I thought by agreeing the knife might appear, and it did.  The sense in which I had understood “predisposition”, your Honour, was a practical concept that that decision‑maker had, presumably properly, made findings which that decision‑maker would be entitled to use as part of the decision‑making process required under section 430.  Now, how they are to be used under that process will, of course, depend upon what other information is made available in the process.  But it is not put as issue estoppels.  We have made that clear. 

KIRBY J:   It is just part of the further consideration which the statute contemplated.

MR GLEESON:   Yes.

McHUGH J:   But it does come down to this, though – and I think this might be the real crux of the matter – that you have to say that it is proper to give a direction that would give the applicant an advantage in having the application further considered.

KIRBY J:   Well, it may not turn out to be an advantage.  Ms Boland may be against him.  She, after all, decided the case against him.

McHUGH J:   Well, she may, but the reasons of the court in this case seem to me to be very plainly to the effect that this was done to give the applicant an advantage in respect of certain matters.

MR GLEESON:   Your Honour, it may be better seen as an attempt to ameliorate the disadvantage he has potentially suffered through the error of law.

GLEESON CJ:   But the theory was, was it not, that the interests of justice dictated that he should – and I think this was almost the exact language that was used by one of the members of the Federal Court – retain the benefit of some favourable findings that had been made?

MR GLEESON:   But that is an expression which, when one situates it in the context of the statute, as I have attempted to do, recognises that those findings will simply become a part of the process which will lead to the new decision under section 430 and the precise role they will ultimately play, that cannot be predicted or guaranteed.

McHUGH J:   But this term “process” which you have used continually throughout much of your argument is a metaphor, is it not?  There is nothing in the statute that talks about a process.  There is an application that has to be determined.  It has to be determined in a particular way with reasons, et cetera.  When you set aside the decision of the Tribunal and you tell the Tribunal to reconsider the matter, the application, what is left?  There is no process except some metaphorical notion, is there?

MR GLEESON:   Well, it is slightly more than a metaphor, your Honour.  I am going back over the same territory, but there is an application which is before the member, that the member and the Tribunal have the overriding tasks in section 420 and they are being carried through.  There are particular things that can be done in the course of the review, such as section 424, which relates to the obtaining of further information.  Indeed, under 424A the applicant must provide certain further information if required by the Tribunal.  So that is all part of the process.  Under 424B in certain circumstances the applicant must be given an invitation to comment upon certain information.  So it is not a formal court process but there is a process.  There is a process for hearing.  There is a process ‑ ‑ ‑

McHUGH J:   In so far as it is a process, even on this basis, it is a process of the Tribunal, not individuals.  Although you accept, or at least by implication, that in 481 the relevant person here is the Tribunal.  It seems to me that your argument slides between the Tribunal and the person constituting this Tribunal.  In so far as anything has been done, it has been done by the Tribunal.  What does it matter, in theory, anyway, as to who constitutes that Tribunal?  In so far as there is a course or a process, it is the Tribunal’s process.

MR GLEESON:   And it is constituted by the single member and it is that single member who has to discharge the Tribunal’s responsibility, go through the statutory steps and in the end produce something which complies with section 430, and that will involve, as is mentioned, in part the subjective reasons and findings of that individual constituting the Tribunal.

McHUGH J:   In a sense it is true that an individual must do this but, leaving aside restrictions on relief, if you were seeking a mandamus because the terms of 430 were not carried out, it would not be directed to the individual, it would be directed to the Tribunal, because of its obligation.

MR GLEESON:   All we seek to derive from it, your Honour, is that it is the individual constituting the Tribunal, carrying out that task and ultimately reaching the section 430 conclusion.  Now, if that person has done some or most or just about all of that task and has not answered the right question at the end of the day, but for that error of law, that individual would have completed the task properly a couple of years ago.  All the Full Court was doing was saying there is at least a risk here, that if the Tribunal is constituted differently from the beginning, the end result will be a set of reasons, inconsistent with the first set of reasons, and not because of any circumstance such as change of information and the like.  That is a process which they have held under this statute is not giving justice within the language of section 420 to Mr Wang.

GLEESON CJ:   They have decided, rightly or wrongly, that that is a risk that they are entitled to eliminate or do their best to avoid.

MR GLEESON:   That is so, and that is because the considerations of section 420 which range across fairness, justice, economy, utility, et cetera, which are the considerations that they are entitled to take into account under section 480 in directing the further consideration, that the court has found point in that direction.  Now, to take that risk ‑ ‑ ‑

GLEESON CJ:   I do not see them taking into account any other consideration than that they consider that your client is entitled to start off as close to success as he came in the first round, and that is either a legitimate consideration or it is not a legitimate consideration.

GUMMOW J:   But they made it, in any event, the only consideration.

MR GLEESON:   Well, not so, your Honour.  They took into account at least one negative consideration.  They said this is not a case where there is a bias problem because they said, in effect, “If there were a potential for bias, that would override anything else and we would simply direct it to be constituted.”  So they took into account at least that.  What we have sought to do in our submissions, and if I could take your Honours through to paragraph 37 on page 15, we have sought to say that whether or not these other matters were made explicit by the Full Court, there were a range of proper considerations which would point to a no reconstitution order in this case.

We include in those in paragraph 37(c) what Justice Tamberlin said in the Villa decision and those considerations, which your Honours will see are picking up the language of section 420, we submit they are all present in our case.

GLEESON CJ:   Mr Gleeson, on page 225 at line 15, there is a remark in parenthesis by Justice Merkel.  Do you see that?

MR GLEESON:   Yes.

GLEESON CJ:   “(putting aside issues of unavailability etc)”.  How would those issues ever come up for consideration in a situation like this?  How would they be ventilated?

MR GLEESON:   We have proposed two means in which they could have been ventilated before the Full Court and that is in paragraph 23 of our submissions.  We put forward two possible ways there in which that material could have come before the court.  We make a parenthetical reference to section 480.  Mr Basten has submitted that the effect of section 480 is that the Tribunal could never become a party to proceedings.  We would submit it does not have that exhaustive effect.  So by one or other of those means, those considerations could have come back before the court and, of course, your Honour, the other answer is that - and we do not shy away ‑ ‑ ‑

GLEESON CJ:   Just a minute.  This is put by Justice Merkel as a qualification to the proposition that there is no power in the Principal Member to exercise a discretion.  So presumably what Justice Merkel has in mind is that there are some circumstances, which he described as “unavailability etc” in which there is a power in the Principal Member to exercise a discretion to determine where the different course is to be followed.

MR GLEESON:   Perhaps I missed the question.  Your Honour, it is true that even in the present case, if the Full Court’s order is upheld, that order does not prevent forever the Principal Member exercising his powers.  If Ms Boland dies or becomes unavailable, then ‑ ‑ ‑

GLEESON CJ:   But what if she just says to the Principal Member, “Look, my workload has really been quite excessive in the last six months.  Can you ease off a little?”, and he says, “All right, I won’t require you to take cases X,Y and Z”, and one of the cases is Wang.

MR GLEESON:   Your Honour, if that occurred after the Full Court had made the order, if we may assume that, so the court has said this matter is to go back to the Tribunal as constituted, the Principal Member would have to ask himself:  do I have any discretion under sections 422 or 422A which allows me to even listen to Ms Boland’s request?  The answer to that is that it would not satisfy 422, because it would not be availability, and the only possibility would be whether it could satisfy the highly circumscribed provisions of 422A.  What the Principal Member would have to do is ask himself all of the questions in that section and then make a decision.  Therefore, the two can sit together.  One would expect that in making that decision the Principal Member, even if every other precondition to the decision were satisfied, would have to give important weight to the Full Court’s order, because that was the determination as to what was the court’s view on the best way for the further consideration of the matter.  So, your Honour, we would read that parenthetical material as indicating in it in brief form that there might possibly be circumstances - the present is not one - where there may be a further activation of an administrative decision in this area.  The final submission we would make to the Court is set out in paragraph 49 and that is self-explanatory.

The only other case I wish to refer to was the decision in Park Oh Ho v Minister for Immigration 167 CLR 637. The relevant passage is at page 644. The facts of course were a little different in that case. The Court did use the power under section 16(1)(c) of the AD(JR) Act to make a declaration of the rights of the parties, and for that purpose considered that the Minister and the applicant were relevantly parties.  The Court did so because that was thought necessary to do justice between the parties, and the stated reason given was to, “avoid unnecessary re‑litigation between the parties of those issues.”  The issues seem to be whether the detention in custody was unlawful during a specified period.  That appears from the form of declaration at page 646.

Your Honours, there are just two final submissions we would make, comparing two other situations.  The first is there will be many cases where the decision‑maker is a natural person rather than a Tribunal and the remittal will inevitably go back to the natural person, who will ordinarily derive the practical benefit from existing findings that we are seeking here.  So it is a course that we submit is not foreign to the area of judicial review.

The second matter concerned the reverse situation, where the court finds that there was an error in the decision but ultimately does not set aside the decision under 481(1)(a) because the court says, based on the findings of fact which are otherwise in the decision, the decision was justified on a different ground.  That is an example where the findings of fact remain alive even though there has been a relevant legal error.  So we submit there is no asymmetry between that result and what we seek here.

HAYNE J:   I would have thought the converse case was not so much that as the case in which there is an error of law but there are adverse findings as to the credit or the claims made by the applicant.  It would seem to follow by parity of reasoning that such a case should go back, if your submissions are right, to the same decision‑maker with a predisposition against the applicant and against the credibility of the applicant, a result which might point quite sharply to the difficulty of predisposition in this area.

MR GLEESON:   I need to answer that, your Honour.  Obviously what your Honour has put as the converse is not the result that the law dictates.  Many cases say that that is the classic situation where reconstitution is required because otherwise there is a fear, a recently held fear, that the person is not receiving justice.  So the question then is what does one take from that, and perhaps it comes back to your Honour’s word “predisposition”.  The very thing the Full Court was at pains to point out was that no one suggested that Ms Boland was going to have a closed mind on the issues.  The Full Court said if that had been the case then that would have been the end of the matter.  So we are not dealing with that sort of predisposition is the submission we would put.

KIRBY J:   But the Minister is a party and the people of Australia have an interest in its composition, in the composition of the population.  The opposite hypothesis that Justice Hayne has mentioned would seem to me to follow if the Federal Court has the power, in a case where it is favourable to an applicant, to say, “You’ve made one mistake at the end of the course.  Go back to that end of the course and reconsider the matter.”  And, of course, if there is new information, then you have to take that into account.  That would follow in a case where the predisposition was against the applicant and the Federal Court gave a direction and said, “This very long proceeding has got so far, but the flaw occurred at the end.  You have to go back and deal with it from that point.”  I do not see why that does not follow and is not within the power and is not logical.

MR GLEESON:   Perhaps much depends on the circumstance of the case.  As your Honour says, if it were that case  ‑ ‑ ‑

KIRBY J:   It is a matter of the principle of economy and justice as between all parties.

McHUGH J:   Well, the case we gave judgment in this morning, Rajamanikkam, illustrates it where the Minister, on one view, succeeded all along the line.  According to the Federal Court there was just this erroneous finding.  If you are right, that case could have been sent back to the same tribunal of fact just to look at this outstanding issue, everything else having been decided against the applicant and they being factors which were the basis of the final conclusion as well.

KIRBY J:   In a particular case that could be both logical and just.

MR GLEESON:   That is so, your Honour.  We do not shy away from this fact.  If the Court is exercising appellate jurisdiction, not judicial review, it is a perfectly normal and standard function of the Court when it detects error, to determine what tribunal below should deal with it and often the Court says, as in Smith v New South Wales Bar Association, it must go somewhere else and, in some cases – one could think of a complex damages trial where an error was made on one question of law and a few facts therefore were not addressed, where the Court would direct that the matter be remitted to the trial judge for further determination in accordance with law.

Now, in making those decisions, the Court, admittedly in a purely judicial context, is taking into account economy, fairness, justice to the parties and, we do not shy away from it, the public impression that is left of justice in that case because the public impression in the damages case I have illustrated where the matter goes back for a new trial before a different judge who goes through all the evidence and comes up with a different view on credit and weight and the like is not favourable to the administration of justice.

GLEESON CJ:   But that is the problem involved in this concept with “unavailability, et cetera”.  If a higher court says the matter is remitted to the court below, but to be determined by a different member of the court, that is usually very easy to comply with.  But if the higher court says the matter is remitted to the court below to be determined by a specific individual member of the court, that might give rise to issues and complications, administrative issues and complications, of which the higher court does not have the faintest idea.  The person might be entitled to long leave.  The person might be ill.  The person might be trying to get his or her workload decreased.  There might have been a rearrangement of responsibilities.  The person might have been assigned to a different division of the court. 

MR GLEESON:   Your Honour, they are matters which would not detract from the power to make the order or the appropriateness in certain cases.  We submit that is the very thing the Full Court did the first time around.  They said, “This is what we propose, but we have not heard from the parties and there may be something we don’t know about.”

GLEESON CJ:   If the High Court remits a matter to the Supreme Court of New South Wales and the matter has been decided by a judge who, at the time, was a judge of the Commercial Division, by the time the matter is remitted the judge might be in the Equity Division or the Common Law Division or on the Court of Appeal.  Those are matters about which the High Court knows nothing.

MR GLEESON:   We submit that in the present case the Full Court amply coped with that possibility and that was the very reason for the grant of liberty to apply.  If there was some circumstance of the sort your Honour is positing, if Ms Boland was truly unavailable, presumably ‑ ‑ ‑

GLEESON CJ:   Or for some reason limited to Melbourne matters.

MR GLEESON:   Possibly.  What one would have expected from the Tribunal was not the peremptory letter of 11 January but, acting properly, the Tribunal could have said, “Thank you for your request.  Unfortunately, we have the following reasons why that request cannot be met”.  That was what the Full Court envisaged would happen if there was some problem lurking around they did not know about.  That would be raised by, let us say, the Tribunal, and the whole thing would have been dealt with.  But what the Full Court did not contemplate was that the Tribunal would, for a reason which is, “We’ve decided to allocate your file from one State to another”, simply make that peremptory reconstitution decision.  So, our submission is that the concerns your Honour has are ones which (a) can be dealt with under our construction of section 481; and (b) the Full Court in the present case properly dealt with by the grant of liberty to apply.  And when the matter came back for the second hearing, if there was any true reason above what is in that first paragraph of that letter of January, why there was a problem, the matter could have been brought to the court in one of the two ways I have mentioned, and there was none.

Your Honours, we are not urging that this Court should regularly or appellate courts should regularly or invariably delve into this question of reconstitution.  We are simply submitting that the power was there for the Full Federal Court and there was no error in the way it was exercised in this case.

KIRBY J:   The Full Court had that letter from the registrar of the Tribunal at the time that it made its order?

MR GLEESON:   That was the only evidence before it of any thinking coming out of the Tribunal.

KIRBY J:   It is pretty weak excuses.

MR GLEESON:   It is a letter that does not even – and we have said in a sense it is a letter that flouts the grant of liberty to apply because it does not even acknowledge that the Federal Court, seized of the matter, has made orders, has indicated a predisposition as to the appropriate solution ‑ ‑ ‑

KIRBY J:   No, but more significantly and given the facility of video link which apparently was used in the first instance, there is no real problem, except one might say there is a marginal cost in having a video link, but that might well be very much offset by the cost of not having to go through everything from square one.  How long did the case take before the Tribunal in the first instance?  Is that revealed?

MR GLEESON:   Mr Mills instructs me that the hearing, to use that expression, took one day before the Tribunal.  Your Honour, those

considerations which can apply in the case of appellate work, we submit that although we are here in a case of judicial review, can provide some assistance.  May it please the Court.

GLEESON CJ:   Thank you, Mr Gleeson.  Yes, Mr Basten.

MR BASTEN:   Your Honours, may I briefly answer some of the questions that the Court has invited my friend to consider but before doing so may I just respond to the last matter which passed between the Court and my friend.

The analysis of the correspondence from the Tribunal and the paucity of its content is reflective of one simple fact, namely, that there was no challenge made to the relevant decision of the Tribunal and it was a decision which the Full Court presumed the Principal Member had made, as appears from Justice Merkel’s judgment at page 224, line 32, Justice Wilcox agreeing.

It is a matter of concern that the Full Court did apparently envisage that if the applicant were inclined to request that the Tribunal be reconstituted in a certain way, that request would not be refused without the Tribunal condescending to provide full reasons for why it took a different view from that which tentatively the Full Court had suggested.  Now, with respect, that is not the basis upon which any adverse inference could be or should appropriately be drawn against the manner in which the Tribunal dealt with the matter.

May I return to the first question that your Honour the Chief Justice put before lunch: did the interests of justice require – and I think your Honour Justice Kirby said permit, as an alternative – the Federal Court to take account of the so-called advances from the commencement of the case which had been achieved by the applicant? Our answer to that is, no, for three reasons. Firstly , to talk about advances or findings in this manner so as to suggest a perceived unfairness in failing to maintain those benefits is no more than an argument for estoppel in disguise and this is not an appropriate conclusion that flows from the operation of section 481 any more than from section 16 of the AD(JR) Act which Morales says, of course, does not provide that conclusion.

Secondly, each of the considerations of the perceived unfairness is based upon – and my friend expressly relies upon it – the terms of section 420.  Forgetting that 420 provides no obligation in a legal sense, as Eshetu decides, section 420 is expressly the basis upon which the Principal Member is invited to exercise his powers or required to exercise his powers under sections 422 and 422A. 

If I may say it in passing, I do not understand why my friend suggests that 422A will not account for the usual case in which the Tribunal simply remits the matter where it is thought inappropriate for the same member to continue.  The terms of 422A(1) are posited purely upon a view formed on the basis of the factors set out in section 420, subject to consultation with the member concerned.  There is no limitation there on that type of case.  Might I also note that the practice to which my friend adverted without reference may be that referred to by Justice Gray at page 186 at line 40, where he said:

The Court has been informed by the RRT that its practice –

that is, of the Tribunal –

is for a matter remitted to the RRT by the Court to be allocated for hearing by a member other than the member who made the decision –

and that, one would think, could at least take place pursuant to the operation of section 422A.

Thirdly, the point that Justice Merkel was seeking to make at page 225 in the passage referred to by your Honour the Chief Justice goes a little bit further than my friend acknowledges.  The last sentence of that paragraph after he says, “(putting aside issues of unavailability etc)”, expressly denies that:

the Principal Member is authorised under the Act to exercise a power in a manner that is inconsistent, or in conflict, with an order of the Court under s 481(1).

He, presumably, would not envisage that 422A or any other provision could be relied upon in that circumstance.

Consistently, in Applicant C, in the judgment of Justice Stone, her Honour comes to grips with that possibility, in paragraph [95], by saying that, should the member be unavailable, “the parties should have liberty to apply” to the court for it to exercise those powers which would otherwise be vested in the Principal Member.  What this illustrates, with respect is that, firstly, in answer to your Honour Justice Hayne’s three questions, we would accept that the member can take account of findings made previously and that an order to that effect would, as your Honour suggested, do no more than reflect the obligations under the statute.  But we would reject the power to make directions that those findings were in some way binding on the court or that the reconsideration should be confined to a question which had not been considered on the assumption that that impliedly accepts that other findings which had been made and were necessary must be preserved.

KIRBY J:   You said “on the court”.  You meant on the Tribunal, did you not?

MR BASTEN:   I meant on the Tribunal, I am so sorry.  It is clear that the court did not think at the time that it could make an order to preserve favourable findings or that the Tribunal was bound by the findings that it had made - that, we say, is a correct view – nor does the respondent, in this case, suggest otherwise, but it becomes important if it were thought that this were an appropriate order to consider what the findings were.  My friend took your Honours to the Tribunal.  Might I simply, out of reference, to page 159 in the appeal book at lines 30 to 45, where, doing the best he can, Justice Lindgren set out what he thought were the express or implicit findings.

If the effect of the order is to require the Tribunal to revisit its own exercise in decision-making, in order to isolate and identify findings which had been made, that, with respect, would surely be a subversion of the proper function of the Tribunal and one which was not intended by the legislature.

Thirdly, your Honours asked before lunch for reference to the cases under the Judicial Review Act which had permitted some order other than a simple referral back to the Tribunal.  Park Oh Ho 167 CLR 637 was one of those cases, as your Honours appreciate. The facts make it clear why a different order was required, or permissible: the deportation order having been set aside, there was no legal basis for the detention of the applicant in that case. Accordingly, it was appropriate to declare that the applicant had been unlawfully detained.

In Thiyagarajah 199 CLR 343 at 356, footnote 38, there is reference both to Park Oh Ho and Johns, to which reference has been made, and to Conyngham’s Case 11 FCR 528. Conyngham was not a case in which any other order was in fact made, but there is a discussion at page 537 in the judgment of Justice Sheppard.

KIRBY J:   Which volume of the Federal Court Reports? 

MR BASTEN: 11 FCR 528 at 537, the reference being given in the footnote in Thiyagarajah.  Justice Sheppard relied in that passage on the decision of this Court in R v Anderson; Ex parte Ipec-Air 113 CLR 177, and particularly a passage in the judgment of Justice Kitto at 187 to 188, which is, as I would apprehend it, the same circumstances, that which led the Court in Thiyagarajah to remit with a direction that the appellant be treated as a person entitled to refugee status. 

Perhaps the wording was not entirely apt in terms of the statute, but the basis upon which such an order could be made is, of course, that on the findings of fact there was, as it were, a constructive decision by the Tribunal which had found the facts in favour of the appellant, but not made the necessary order, and only one conclusion was available as a question of law in that circumstance.  That, of course, is an appropriate case to make an order, other than a remittal, without direction.  Those are the cases, we would think, which illustrate the points. 

Might I say one final thing.  In relation to the question of what is the matter, the answer is that the matter before the Tribunal is an application which is made under section 412(1) in relation to a decision made under section 411(1)(c), which is the subject of consideration and the exercise of powers under section 415.  The application itself to the Tribunal is to review a decision made under section 65 pursuant to an application for a visa under section 45, which must be considered by the delegate under section 47. 

So that the matter is thus defined, firstly, by reference to the application before the Tribunal but thence back to the application for the visa.  That is the matter which is there for reconsideration for the Tribunal to determine.  If the Tribunal does not affirm the decision of the Minister, then the decision as substituted or varied is taken to be a decision of the Minister pursuant to section 415(3).  Your Honours, those are our submissions.

KIRBY J:   Is the applicant in immigration detention or at large?

MR BASTEN:   No, your Honour, at large.

KIRBY J:   I assumed the latter.

McHUGH J:   No attempt was made to bring a special leave application against the substantive decision, was it?

MR BASTEN:   No, your Honour.  That is what I say, no application was made.  The matter was considered.

McHUGH J:   Yes.  I must say this whole case may be rather academic.  I have some difficulty myself in seeing that the Tribunal did not decide the question it asked of itself, but that is another question.  If it goes back, the Tribunal may well say it has already come to the same conclusion.

MR BASTEN:   I agree with what your Honour says.

KIRBY J:   That is not my impression.

MR BASTEN:   I can understand why his Honour says that.

GLEESON CJ:   Thank you, Mr Basten.

KIRBY J:   I hope you can understand why I say that, too.

McHUGH J:   Well, I cannot.

KIRBY J:   Neither can I understand yours.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn until 9.30 am tomorrow morning in Sydney.

AT 3.50 PM THE MATTER WAS ADJOURNED