Applicants S158-2002, Ex parte - Re MIMIA & Anor

[2002] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S158 of 2002

In the matter of -

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

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

APPLICANTS S158/2002

Applicants/Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 11 JUNE 2002, AT 9.32 AM

Copyright in the High Court of Australia

MR J.W. SHAW, QC:   If your Honour pleases, I appear with my learned friends, MR A.D. SEARLE and MR D.W.M. CHIN, for the applicants.  (instructed by Jones Staff & Co)

MR S.B. LLOYD:   May it please the Court, I appear for the first respondent.  (instructed by the Australian Government Solicitor)

HER HONOUR:   The Deputy Registrar certifies that she has been informed by the solicitor for the second respondent, the Refugee Review Tribunal, that that respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court, save as to costs.  Yes, Mr Shaw.

MR SHAW:   Your Honour, I move for a rule nisi on the basis of the affidavit sworn by Ms Stein‑Evers Frankl on 24 April 2002 and also the affidavit of the applicant sworn on 7 June 2002.

HER HONOUR:   Yes, but are you in a position to improve upon the draft order nisi?  There seems to be a want of specificity as to the grounds.

MR SHAW:    Yes, your Honour.  A document compiled in something of a hurry and perhaps on my ‑ ‑ ‑

HER HONOUR:   Perhaps it is in 7 – no – yes, I am sorry.

MR SHAW: The fundamental constitutional issues I think are, if I may say so, reasonably specified in paragraph 7(i), an attack on those particular provisions of the Migration Act.

HER HONOUR:   Well, you have to go beyond that, do you not?  Now, which Act should I be looking at?  Reprint 8, does that have those sections in it?

MR SHAW:    Yes, apparently so, your Honour.  Section 474 is the privative clause definition, sometimes referred to as a primary decision in the statutory scheme, and it purports to apply to “any court”, according to section 474(1)(b), so, prima facie, even to this Court.  Section 475 says that:

This Division is not to be taken to limit the scope or operation of section 474.

And the division goes on to make some specific provisions with respect to the Federal Court and the Federal Magistracy. So the Minister’s submissions do not appear to contradict the proposition that, prima facie, the privative clause purports to apply to this Court, we say, contrary to section 75(v) of the Constitution.

HER HONOUR:   All right.  Let us assume for the moment you get past that.  Then what do you say renders the decision reviewable?

MR SHAW:    Well, we have a series of administrative law attacks on the decision at first instance.  The first decision made by the departmental decision‑maker, which is Annexure A to the first affidavit of Ms Stein‑Evers Frankl, determines the claims of our clients to be plausible.  That is to say, and I quote:

having been in the military intelligence, the applicant would be seen as a threat to the success of the illegal operations of these groups.

And the harm feared by the applicant, as was found by the primary decision‑maker, is a grave threat to his life and his wife associated with that, but the primary decision‑maker then draws what we say is a fallacious distinction or dichotomy between the vulnerability of the applicant as a former military intelligence officer and “what he did”.  That is to say, the primary decision‑maker said, “Well, the threat of harm to the applicants is a threat for purely criminal reason.”  We would submit that that is really a confusion, a false dichotomy, where it is clear that because of his membership of a social group, that is to say former military intelligence agents, and we would also say he has contended that because of his express views about human rights and his opposition to engaging in massacres, he is vulnerable to a serious threat to his life.  Now, it is true ‑ ‑ ‑

HER HONOUR:   Yes, but how do you bring it within the Convention definition?

MR SHAW:    Both because the threat derives from him being a member of a ‑ ‑ ‑

HER HONOUR:   The threat does not derive from the authorities in the country concerned, does it?

MR SHAW:    Well, it derives from the military and the paramilitary.  They are the authorities.  But we bring it within the Convention by saying that the threat derives from the fact of him and his wife being a member of a definable social group, that is, ex‑military intelligence officers who have certain information which is dangerous to the military and the paramilitary, and, secondly, political opinion, namely that he declined to be engaged in a massacre or massacres and has expressed his opposition to that mode of conduct.

The primary decision‑maker certainly thought his account of his history in the military was plausible, to use the words of the primary decision‑maker, and really even at the Refugee Review Tribunal, although some findings were made against the credit of the applicant, it is still nonetheless accepted that a particular general ‑ ‑ ‑

HER HONOUR:   Well, that is the decision we have to look at, is it not, rather than the primary decision?

MR SHAW:    Yes, although we say, your Honour, that the ‑ ‑ ‑

HER HONOUR:   Now, which annexure is that?

MR SHAW:    Annexure B to the first affidavit.  We say that that RRT decision does not in any way eschew or rebut the erroneous dichotomy found by the primary decision‑maker.

HER HONOUR:   Can you take me to the decision and show me where it is that you say the error is?

MR SHAW:    It is a very lengthy decision.

HER HONOUR:   You should not assume I am as familiar with these documents as I might otherwise be, if it were not a chamber matter.

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

HER HONOUR:   The critical finding is at, I would have thought, 3.4.1:

I find that the harm feared by the applicant is nor –

it should be “not” –

for any of the Convention reasons.

Is that right?

MR SHAW:    Yes, I am not sure that that – yes, I think your Honour might be looking at ‑ ‑ ‑

HER HONOUR:   I still have the first one, have I?

MR SHAW:    Yes, I think so, your Honour.  It is this Annexure B which regrettably is not paginated too successfully, but it is the decision of Ms O’Brien, Tribunal Member, of 18 April 2001 handed down on 8 May 2001, whereby the Tribunal affirmed the decision not to grant the protection visas.  It is a lengthy decision.  In terms of pagination, the actual reasons of the Tribunal begin at page 14 of the decision of the Tribunal, and I am looking at the page number in the lower right‑hand corner.

HER HONOUR:   I have page 13, “FINDINGS AND REASONS”.

MR SHAW:    Yes, that is so, but in substance it is on the next page that the reasons begin to be articulated.  First of all, it is said that there is a consistency – I am looking at about point 3 on the page – about the applicant’s claims about fear of harm from the particular general “to ensure his silence”.  Then there is some discussion about the change of stance with different firms and different immigration agents and so on.  Then if I can just, without wanting to distort the effect of the decision, emphasise those findings which might be said to be supportive of our clients, although in fairness at page 16, point 5 the RRT is saying, “Well, look, it was only a few years ago that the general was absolved.”  He was apparently put on trial and acquitted, but the Tribunal says:

However the Tribunal does not accept that the Applicant’s fear of harm is well‑founded.

HER HONOUR:   Well, your problem would seem to be at page 15, would it not:

The Tribunal is satisfied on the basis of the Applicant’s direct oral evidence to the Tribunal that he has no fear of harm from guerilla groups, either generally or the EPL in particular.

MR SHAW:    Yes, we accept that in relation to guerilla groups, your Honour, but not in relation to the military or the paramilitary.

HER HONOUR:   Very well.  Now, where is it in relation to the paramilitary?  Where is the finding?

MR SHAW:   Page 14, point 3, in the first complete paragraph on that page:

As can be seen from the detail above, the general consistency and the strong focus of his claims, to fear harm because the General wants to ensure his silence, has not altered.

Then there is some discussion about the change of stance because of different solicitors and different agents and so on.  But, in our submission, there can be – well, we would want to run a Wednesbury unreasonableness point, that ‑ ‑ ‑

HER HONOUR:   Well, first of all, I want you to explain to me exactly what you say is the error and where I can find it upon which you would seek review if you got past the privative clause provisions.  You see this document – and I realise the documentation was prepared in some haste, but it does not seem to be exposed to me.

MR SHAW:   We would first begin by saying, your Honour, that the RRT decision does not in any way eschew or rebut ‑ ‑ ‑

HER HONOUR:   That does not matter, does it, Mr Shaw?  It is this decision and it – I mean, I want you to tell me what the effect of the Tribunal decision is and where you say there is error.

MR SHAW:    Well, we say the Tribunal decision assumes the error of the primary decision‑maker.

HER HONOUR:   In what part of the decision can I find that?

MR SHAW:    Well, it may be sub silentio.

HER HONOUR:   And it may not be there either.  That is the difficulty.

MR SHAW:    Well, there is no disavowal of that dichotomy.

HER HONOUR:   But was it necessary?  Take me to the Tribunal’s findings that led to the rejection of the claim.

MR SHAW:    Well, your Honour, they are somewhat prolix.  They go over many pages.

HER HONOUR:   Yes, but you must be able to point out – it is your case, Mr Shaw.  On my quick reading of it, it looked to me entirely like factual findings that would give no basis for review, either under the Migration Act or under 75(v), but I am here to be told otherwise but I need to be taken through it.

MR SHAW:    Your Honour, there are findings in the RRT decision which are supportive of the – perhaps I can say this.  We say the RRT decision is contradictory in a number of respects.

HER HONOUR:   That does not take you very far ‑ ‑ ‑

MR SHAW:    Perhaps not.

HER HONOUR:   ‑ ‑ ‑ in terms of reviewable error.

MR SHAW:    Yes, but there are positive findings which show a real concern and a real problem and a real fear.  For example, page 17, paragraph 3, reference is made to the applicant’s evidence about threats and intimidation and the warning by the general for him to keep silence.  That seems to be accepted.  At the bottom of page 17, the Tribunal says:

Despite the inconsistent evidence the Tribunal accepts as plausible, that the Applicant was the subject of abusive or threatening calls sometime in 1996 and that the message was to ensure his silence about the General at a time when he was being investigated.

But then it is true the Tribunal goes on to rely upon the passage of time and to say that ‑ ‑ ‑

HER HONOUR:   Well, that is right.  The critical thing is that the general was acquitted in 1997 and finds such a claim implausible, et cetera, and then not satisfied of “a well‑founded fear of persecution” if he returns now.  Well, that is what you have to deal with, is it not?

MR SHAW:    Yes, your Honour.

HER HONOUR:   It is hard to say that they were not findings that could be made, is it?

MR SHAW:    Well, we would say that they were not rationally open, that given the general information that is contained in the decision about the regime in Colombia, the passage of a few years is unlikely to remove the threat and we would want to argue that it was simply unreasonable and not open.

HER HONOUR:   So the only ground you would seek to argue if you got past the privative clause provisions is the Wednesbury “unreasonableness” ground?

MR SHAW:    Yes, your Honour, plus the point that your Honour has been a little sceptical about, that the decision does not eschew the original jurisdictional error but ‑ ‑ ‑

HER HONOUR:   No, but why would it need to?  Given the factual findings, why would it need to deal with it?

MR SHAW:    Because one can read into the decision that it is really predicated upon it, that it accept it.

HER HONOUR:   I would not read it that way at all.  I read it as a decision proceeding on an entirely different basis, nothing to fear, whereas the first decision‑maker said, “Yes, something to fear but not for a Convention reason.”

MR SHAW:    Yes.

HER HONOUR:   Is that a correct analysis?

MR SHAW:    That is a correct analysis, your Honour.  When your Honour says “nothing to fear”, I have to accept that the RRT says not “a well‑founded fear”, although, in my respectful submission, that stretches credulity.

HER HONOUR:   Many of these decisions might be said to do that but one still has to find reviewable error.  How do you say it is Wednesbury unreasonableness for the Tribunal to come to the decision?

MR SHAW:    Your Honour, the highest I can put it is that in paragraph 40 of our written submissions we seek to make out a case ‑ ‑ ‑

HER HONOUR:   Well, I have not, I think, your written submissions.

MR SHAW:    I apologise for that, your Honour.  They were only completed on Friday.

HER HONOUR:   I am sorry, yes, I have.  Yes, I have, sorry.

MR SHAW:    In paragraph 40 of our written submissions we seek to make out a case that it was simply not a reasonable or rational conclusion to draw that there was no “well‑founded fear” of threat to life and we rely upon the positive findings of the RRT itself which, in our submission, constitute a plausible case about fear of retribution.  First, General Diaz warned the applicant, the husband, to keep silent about knowledge of the army and paramilitary collaboration.  Secondly, there is a positive finding by the RRT that he was subject to abusive and threatening telephone calls designed to ensure his silence.  Thirdly, in February 1997 the applicant’s father was visited by armed men inquiring about his whereabouts for the purpose of ensuring his silence.

In addition, may we add, your Honour, that in an annexure to the second affidavit relied upon, that is, the affidavit of the applicant, there is evidence about harm done or disappearance of other members of his family.

HER HONOUR:   Yes, but on what basis would that affidavit be admissible on an order nisi application?  It seems to me that one has to find error in the decision on the material that was before the Tribunal, not on the basis of – that is subsequent information, is it not?

MR SHAW:    It is, your Honour, yes.

HER HONOUR:   In paragraph 43, you say:

This error was compounded by the breach of natural justice –

et cetera.  Now, does that assume any real place in your argument?

MR SHAW:    No, your Honour.

HER HONOUR:   No.

MR SHAW:    Except that there is an argument that in terms of the RRT focusing on various confusions and contradictions it is, we think, arguable that the applicants ought to have been entitled to representation before the RRT and we base that upon Article 13 of the Convention which is set out in ‑ ‑ ‑

HER HONOUR:   But let us look at the Act.  What does the Act say about representation?

MR SHAW:    I do not think it says anything, your Honour.  I do not think says anything, but ‑ ‑ ‑

HER HONOUR:   Did they seek representation?

MR SHAW:    There is evidence that they could not afford it.  The Act does say something about it, your Honour.  Section 427 of the Act says that:

(6)  A person appearing before the Tribunal to give evidence is not entitled:

(a)  to be represented –

Now, whether that includes an applicant is not perhaps quite clear, but a person appearing to give evidence is not entitled to be represented.  I thank my friend for that.

HER HONOUR:   Now, you rely solely on jurisdictional error and not on anything else, do you?

MR SHAW:    Well, in so far as Wednesbury unreasonableness might be characterised as jurisdictional error, the answer is, yes.

HER HONOUR:   Yes.

MR SHAW:    If it is not, we rely on that in addition.

HER HONOUR:   Well, how can you rely on it in addition, is what I am asking you really.

MR SHAW:    If the privative clause is void or unconstitutional ‑ ‑ ‑

HER HONOUR:   Yes.  Then what happens?  If the privative clause is void or unconstitutional, you are back in traditional 75(v) jurisprudence, are you not?

MR SHAW:    Yes.

HER HONOUR:   And you are not anywhere dealing with grounds of review as allowed by the Act itself or as was once allowed by the Act itself, are you?  When was this decision?

MR SHAW:    The decision of the RRT?

HER HONOUR:   Yes.

MR SHAW:    The decision is dated 18 April 2001.  It was handed down on 8 May 2001.

HER HONOUR:   So that is prior to the amendments, is it?

MR SHAW:    Yes, your Honour.

HER HONOUR:   What is the effect of that if it is prior to the amendments?  I have not seen these amendments before.  What is the effect if it is prior to the amendments?

MR SHAW:    I have assumed, and perhaps erroneously, that the amendments would hit in once an application for review were made to the Federal Court or the High Court.  That may be erroneous.

HER HONOUR:   I think that might be.

MR SHAW:    The amendments do not on their face purport to be retrospective.

HER HONOUR:   But, in any event, you did not make an application for review under the Migration Act, I take it?

MR SHAW:    No.  Not to the Federal Court, no.

HER HONOUR:   And you would, in any event, be out of time, would you not?

MR SHAW:    Yes, your Honour.

HER HONOUR:   So you would be reduced to 75(v) review.

MR SHAW:    Yes.

HER HONOUR:   And maybe the amendments are not relevant to that.

MR SHAW:    No.  Either not relevant or inapplicable as a matter of constitutional validity, yes.

HER HONOUR:   Yes.  Well, I will hear Mr Lloyd on that.  So it just, subject to what Mr Lloyd says, comes down to the question whether it is arguable that the decision is so unreasonable that no reasonable person could have made it.

MR SHAW:    Yes, it does, your Honour.  Subject to the point I was making about representation – and I have drawn your Honour’s attention to the fact that the Act contemplates no representation for a witness or a person giving evidence before the RRT – could I just ‑ ‑ ‑

HER HONOUR:   But they did not seek representation.  They were not denied it.

MR SHAW:    No.  Their evidence is they could not afford it.  That is in the affidavits.  There was no realistic prospect of them having it, but they did not make an application for it, as I understand it, yes.

HER HONOUR:   So it cannot be said they were denied it by the Tribunal.

MR SHAW:    That is so.

HER HONOUR:   So it cannot be said that there was denial of procedural fairness by the Tribunal.

MR SHAW:    That is so, but the Convention that we set out in paragraph 46 of our written submissions does seem to contemplate representation and the distinction I would seek to draw is representation of an applicant compared to the statutory reference to no representation of a witness or a person giving evidence.

HER HONOUR:   But they cannot convert it into a breach of procedural fairness by the Tribunal, can it?

MR SHAW:    Well, if the Tribunal is giving effect to the Convention, one would think ‑ ‑ ‑

HER HONOUR:   Are you suggesting that the Tribunal has to run a legal aid scheme?

MR SHAW:    No, your Honour.

HER HONOUR:   Well, how is it going to work?  The Tribunal is bound by the Act.

MR SHAW:    Yes.

HER HONOUR:   And bound by the Convention only to the extent that it is incorporated into municipal law.

MR SHAW:    Yes, except that municipal law would be interpreted in the light of the Convention.

HER HONOUR:   Yes, but what is the municipal law that we are interpreting in the light of this Convention?  That they were entitled to legal representation because they were applicants, not witnesses?  Yes.  If they could afford it?  Whether or not they could afford it?  That is the next aspect of the argument, is it not?

MR SHAW:    Yes.

HER HONOUR:   Well, what do you say the next aspect says?

MR SHAW:    Although your Honour is right in saying that the Tribunal cannot be expected to run a legal aid service, it could, in the light of the Convention and in the light of no provision in the Act antithetical to the right in the Convention, say that it would only hear persons who want to be represented and are represented.

HER HONOUR:   I think you might get a mandamus against the Tribunal to consider the claims if you did that.  Well, I understand.  Is there anything else you wish to say in support of the ‑ ‑ ‑

MR SHAW:    No, your Honour.

HER HONOUR:   Yes, Mr Lloyd.

MR LLOYD:   Your Honour, in relation to your Honour’s question about the transitional provisions, my friend’s assumption was correct in the sense that he had assumed that the privative clause provisions do apply and they do.

HER HONOUR:   What makes them apply?

MR LLOYD:   If your Honour has this print‑out, if your Honour goes to page 574.  These are the transitional provisions relating, as you can see from the previous page, to the Migration Legislation Amendment (Judicial Review) Act 2001. Item 8 of Schedule 1 ‑ ‑ ‑

HER HONOUR:   I am sorry, 574?

MR LLOYD:   If your Honour turns back to 573, you will see the heading towards the bottom of that page, that it relates to (Judicial Review) Act.  The first item, item 8, paragraph (1) indicates that the pre‑existing law applies in relation to any application which was filed at that time.  The relevant provision in the current context is over the page, under 574, subsection (2).  The Act:

as amended by this Schedule, apply in respect of judicial review of a decision under the Migration Act 1958 if:

. . . 

(b)  the decision:

(i)  was made before the commencement of this Schedule –

as in this case –

and

(ii)  as at that commencement, an application for judicial review of the decision had not been lodged.

HER HONOUR:   Now, what was the date of commencement?

MR LLOYD:   Here it is May, I believe – April 2002.

HER HONOUR:   April?

MR LLOYD:   Sorry, the commencement.  The commencement was 2 October 2001 and so the proceedings commenced in April.  So the consequence of the transitional provisions is the privative – that it is a privative clause decision and those provisions apply.

HER HONOUR:   The effect of that being, if valid, that a decision can only be challenged for not being a bona fide attempt to exercise the power.  Is that the general understanding?

MR LLOYD:   In substance, your Honour.

HER HONOUR:   Well, their validity would at least be arguable, would it not?  I mean, you would have to concede that there are arguments as to the validity of such provisions.

MR LLOYD:   We do not oppose the current application that there are no arguable questions as to ‑ ‑ ‑

HER HONOUR:   The validity of ‑ ‑ ‑

MR LLOYD:   ‑ ‑ ‑ validity, or at least ambit perhaps.  We would say that validity is not arguable probably but the context and perhaps the ambit and the effect of it is perhaps arguable.  But the real nature of our opposition to the current application is that, assuming that it were to proceed, there is such a low prospect on the merits.  Perhaps I should start with – the application refers to two decisions.  My friend only referred to one.  The second decision is in relation to section 417.

HER HONOUR:   I do not think – is that still challenged?

MR SHAW:    What is that, your Honour?

HER HONOUR:   The Minister’s decision not to review.

MR SHAW:    Well, it is.  It is, yes.  I have not said anything about it, I must say, but in our written submissions we do challenge it.

HER HONOUR:   Did I not ask you if you had anything else to say?

MR SHAW:    Yes, you did, yes.

HER HONOUR:   Well, Mr Lloyd, Mr Shaw had better tell me.

MR LLOYD:   Well, perhaps if I start with that, your Honour.

HER HONOUR:   No.  Perhaps we had better go back and hear the rest of Mr Shaw’s argument.

MR SHAW:    Well, it can be briefly put, your Honour.  In terms of what the Minister did, it is true that under section 417(7) the Minister does not have a duty to consider whether to exercise the power in the public interest to substitute his decision for the decision of the Tribunal.  However, we say two or three things.  First, the Minister’s decision is contradictory.

HER HONOUR:   How do you say ‑ ‑ ‑

MR SHAW:    Well, in Annexure F to the second affidavit, I think, or first affidavit – in Annexure F he says he either decided – well, he does not say it, some public servant says it on his behalf:

he either decided not to consider it, or considered it but decided not to grant a visa.

That is, prima facie, inconsistent with the first refusal.  Secondly, it is asserted in that same annexure, Annexure F, that the matter:

did not fall within the Minister’s Guidelines –

but we say that the guidelines could not fetter the general discretion of the Minister to either consider or not to consider the application.  Nextly, it is said that the case does not fall within the ministerial guidelines.

HER HONOUR:   We do not know – this was a request for a second consideration by the Minister though this letter is responsive to.

MR SHAW:    Yes, that is so.

HER HONOUR:   It does say anything about the first refusal really, other than to say it is one or other of them.

MR SHAW:    That is so.

HER HONOUR:   So what are you seeking to challenge, the second 417 refusal or the first?

MR SHAW:    The second.

HER HONOUR:   The second.

MR SHAW:    Which we say is confused and contradictory.

HER HONOUR:   No.  You say that but it is the refusal of the first that might be confused and contradictory:

As you may be aware, your case has previously been brought to the Minister’s attention and he either decided not to consider it, or considered it but decided not to grant a visa.

And they have not looked into the – saying, “We haven’t looked into it but you failed once.  Now, we are not going to refer it to the Minister because it does not fall within the guidelines.”  That is what that letter says, I think.

MR SHAW:    Yes, your Honour.  Now, the guidelines are not in evidence but what seemed to be part of the criteria according to Annexure C to the applicant’s affidavit sworn on 7 June 2002, what seemed to be the criteria are that it has to be “exceptional” or “unique”.  That is at the bottom of that page, which is Annexure C to the affidavit:

Why it is recommended that the Minister not consider the exercise of his power under Section 417:

Case does not ‑ ‑ ‑

HER HONOUR:   This is a letter from your clients’ solicitors?

MR SHAW:    No, it is an internal memorandum within the Department obtained under the Freedom of Information Act.  It is Annexure C to the second affidavit of the applicant.

HER HONOUR:   The second affidavit?

MR SHAW:    Yes, and it is in the last box where it appears that the threshold is set as requiring the case to be exceptional or unique.

HER HONOUR:   Either to conform to the guidelines or be exceptional or unique.

MR SHAW:    Yes.  We say the Minister has to exercise a broad discretion as to whether to consider or not to consider and his discretion cannot be fettered by some externally‑imposed criteria which require the case to be exceptional or unique.

HER HONOUR:   I do not read that document as saying that is what is required.  I read it as saying there are guidelines and even if the case does not fall within the guidelines, it will be considered if it is exceptional or unique.  Then the letter comes back – where do I find the ‑ ‑ ‑

MR SHAW:    Annexure F.

HER HONOUR:   Your first refusal, if you look at Annexure E, decided not to consider exercising his powers.  Now, that is the second refusal then that does not check that out apparently but puts it on – and says:

It still does not fall within the Minister’s Guidelines –

The internal memo seems to give two reasons but the official matter is it “does not fall within the Minister’s Guidelines”.

MR SHAW:    Well, your Honour, we would say that the Minister is bound at least to consider whether or not to consider.

HER HONOUR:   Well, it is a curious provision, is it not?

MR SHAW:    I have not seen anything like it.

HER HONOUR:   And it says, in fact – where is it – where does it say in exercising – he:

is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations –

what is the effect of that?  And then you have subsection (7):

The Minister does not have a duty to consider whether to exercise the power ‑ ‑ ‑

MR SHAW:    Yes.  The highest we can put it, your Honour, is that although he does not have a duty, he has a discretion to determine whether or not he exercises it.

HER HONOUR:   Why is that not satisfied by saying these are the guidelines?

MR SHAW:    Because the statute gives him an unfettered discretion and ‑ ‑ ‑

HER HONOUR:   To substitute a decision?

MR SHAW:    Yes.

HER HONOUR:   But he is not bound to consider whether or not to consider it.

MR SHAW:    That is so.

HER HONOUR:   Now, how do you put your argument for review by reference to the second ministerial refusal?

MR SHAW:    Because that is a refusal even to put it to the Minister, a decision by a public servant that it does not fall within some guidelines and that there is no additional information ‑ ‑ ‑

HER HONOUR:   What is the difference if Tuesday – we will say today – the Minister calls the undersecretary, or whatever these people are now called, in and says, “I am not considering – I am not going to consider any of those 417 applications that have been lodged to date.  Write to everybody and tell them I am not going to consider them”, and, which I would have thought was more responsible, saying, “These are the guidelines and I will consider only those cases that meet these guidelines.”?

MR SHAW:    Your Honour, because we say the statute itself, although providing no duty to substitute a decision, nonetheless contemplates that the Minister would consider exercising his or her discretion.

HER HONOUR:   In the individual case or generally?

MR SHAW:    We would say in the individual case.

HER HONOUR:   Well, where do you take that from?  I mean, you say the Minister cannot come in today and say, “Just write to all those people and tell them I will not be exercising my power to consider whether to grant a new visa or to grant a more favourable decision – anyone who has written to me up until today.”  Could he not say that?

MR SHAW:    We submit not, your Honour.

HER HONOUR:   Why not?

MR SHAW:    Because the primary responsibility is to consider a particular case in the public interests.

HER HONOUR:   No, it is not.

MR SHAW:    That is the primary ‑ ‑ ‑

HER HONOUR:   It does not seem to me that that is the primary consideration at all.  This is a safety mechanism, it seems to me, for the Minister to substitute a more favourable decision, perhaps when things have gone wrong, perhaps when new information has come to light, perhaps because of humanitarian considerations, is it not?

MR SHAW:   Yes, it is the public interest that looms large in section 417(1).  In any event, we submit to circumscribe that general power by saying it has to be exceptional or unique.

HER HONOUR:   But that does not seem to me to be what the letter is saying.  If you go back to the – so far as it is a matter of inference from the boxed document, it has to meet the guidelines or be exceptional or unique.

MR SHAW:    Yes.

HER HONOUR:   And it becomes conjunctive when you turn it into the negative, and what they say in the letter to you is not that it is not exceptional or unique, but that it does not meet the guidelines.

MR SHAW:    Yes, your Honour.  May I just look at that letter again?  Yes.  Well, your Honour, our simple point is, whatever guidelines might be concocted, the matter should nonetheless be referred to the Minister and he should, although he does not have a duty to consider, turn his mind – his or her mind to the discretionary consideration as to whether he should consider the matter.  The guidelines cannot be a block.

HER HONOUR:   That is getting very hypothetical, is it not?  What if they are the Minister’s guidelines?  What if he said, “These are the circumstances in which I will consider cases.”?  And I presume they are the Minister’s guidelines.  Does that not satisfy the terms of 417, given the express

statement that he does not have a duty to consider whether or not to exercise his powers?

MR SHAW:    Well, I appreciate it is an unusual and perhaps extraordinary provision where the Minister does not have a duty to consider whether to exercise the power, but there is nonetheless the requirement, we say, for the Minister to turn his or her mind to whether or not they exercise that duty.

HER HONOUR:   In every individual case which is referred to him?

MR SHAW:    Yes.  That is what we would put.

HER HONOUR:   Pretty hazardous.  Yes.  Just like the Attorney‑General had to turn his mind to every application individually to interfere in the prosecution process.

MR SHAW:    They should, your Honour, on advice and with the benefit of a briefing note, no doubt.  In any event, that is the highest I can put the case for the Minister.

HER HONOUR:   And what do you say – well, you just say there was a clear failure to – it was a jurisdictional error that there was a failure to consider whether or not to exercise the power.

MR SHAW:    Well, that is what we say, your Honour.  They had new material.  Ms Josephine Grieve had written.  I do not know particularly her status or position except that her letterhead says that she is a graduate in Arts and Law from Sydney University.  I do not know whether she is a solicitor or not, but I have just seen the letter and she gives, in effect, a character reference and provides some further information.  Now, that was never put to the Minister.  It might have been information, since it went to good character and the possibility of a job in Australia – more than the possibility, a guarantee of a job in Australia – went to the public interest, but that was never even put to the Minister, we say wrongly.

HER HONOUR:   Yes, thank you, Mr Shaw.

MR SHAW:    If your Honour pleases.

HER HONOUR:   Yes, Mr Lloyd.

MR LLOYD:   Perhaps it is convenient if I can start with the section 417 matter first.  Perhaps I will take your Honour first to the draft order nisi.  This matter is referred to in paragraph 1 of the draft order nisi.  It appears from my reading to refer to a decision of the first respondent, which is the decision of the Minister on 18 February 2002.  That is the decision – stepping back:  the course of correspondence was that there is a letter dated 27 November 2001, received apparently on 17 January 2002, requesting an exercise of discretion under section 417.

There was a referral that went to the Minister and that including, apparently, this document which is Annexure C which my friend has taken the Court to.  Following that there was a response on 18 February that the Minister did not want to consider that question.  Then there was a letter written back to my friend’s client on 25 March.  Shortly thereafter there is a second letter of 3 April and a response to that.  My friend’s arguments, as I understand it, have gone to what he said was Annexure F and he said what he is challenging is the decision in Annexure F.

The decision in Annexure F is a decision, not of the Minister, but of an officer of the Minister’s Department.  It is simply not being challenged by this draft order nisi.  So, with respect to my friend, it is not even on the table that I have to answer that question because it is not what is being challenged.  What is being challenged here and what is referred to in my friend’s written submissions is the decision of 18 December of the Minister ‑ ‑ ‑

HER HONOUR:   It says 18 February.

MR LLOYD:   Sorry, 18 February, your Honour.  That is the decision of the Minister.  Now, we accept that ‑ ‑ ‑

HER HONOUR:   That was the first decision.

MR LLOYD:   That was the first decision.  There is no challenge, as I read this order nisi, to the second decision.  There is no reference to it.  I accept that it is one of the affidavits.  In my submission, it is irrelevant to the pleadings as drafted in the affidavit.  Be that as it may, I will deal with both matters, but I thought I should draw that to your Honour’s attention.

HER HONOUR:   Yes.

MR LLOYD:   In my friend’s written submissions, in relation now to the 18 February matter, that the ground that it is said to be based upon is that ‑ ‑ ‑

HER HONOUR:   Where do I find the 18 February decision?  At some stage somebody is going to have find out a more convenient way of amassing papers for these order nisi applications, but where do I find it?

MR LLOYD:   It is in Annexure E of the affidavit Ms Stein‑Evers Frankl of 24 April.

HER HONOUR:   Yes, I have that.

MR LLOYD:   Your Honour will see the third paragraph there refers to the Minister’s decision of 18 February.  That is the decision which, as I understand it, is the decision being challenged in the draft order nisi.  Now, the challenge in the written submissions which my friend did not repeat orally but he said he adopted them is that the document that went to the Minister, which is Annexure C of the other affidavit which was read, the affidavit of the applicant ‑ ‑ ‑

HER HONOUR:   That document went to the Minister.

MR LLOYD:   It is not dated but it appears to be the document that went to the Minister which led to the Minister’s decision of 18 February.  I say that just because it includes a recommendation to the Minister.

HER HONOUR:   It is dated 15 February 2002 apparently.

MR LLOYD:   Yes.  Well, that would, I guess, fit with the idea of the subsequent decision on 18 February.  Now, the challenge in my friend’s written submissions is that the note, I suppose, is misleading because it suggests that the Tribunal found that the applicants were not in fear of harm.  Now, in my submission, the Tribunal did find that the applicants were not in fear of harm.  Your Honour has already canvassed the reasons briefly, but if I may take you to what is now Annexure B of Ms Stein‑Evers Frankl’s affidavit.  On page 14 of the reasons at the end of the first paragraph on the page the Tribunal says – this is the last sentence on the first paragraph on page 14:

For the reasons that follow the Tribunal is not satisfied that the Applicants fear harm for Convention reasons or that their fears of harm now are well‑founded.

HER HONOUR:   I have not found that, I am sorry.  Page 14.

MR LLOYD:   Page 14.  It is about point 2.  It is the last sentence in the first paragraph.

HER HONOUR:   Yes, thank you.

MR LLOYD:   Now, the Tribunal then goes to give reasons for that.  The Minister would certainly adopt what your Honour indicated to be the distinction between the Tribunal’s approach and the primary decision‑maker – the delegate’s approach.  The delegate accepted that there was a fear of harm but that it was not for a Convention reason.  The Tribunal found that there was neither a fear of harm that is well‑founded at present or that any fear of harm was for a Convention reason.             Now, to that extent, I also take your Honour to page 16.  The first full paragraph on the page begins:

The Tribunal accepts that the Applicant learned about collaboration between elements of the Armed Forces and paramilitaries well over a decade ago but the Tribunal does not accept that the Applicant is at risk of harm now for this reason.

At the end of that paragraph:

The Applicant does not claim to have any detailed knowledge or any damaging evidence of this collaboration and the Tribunal is satisfied that the evidence does not suggest that his general knowledge of this puts him at risk of serious harm now.

Now, that is precisely what is included in this Annexure C document which my friend says is misleading.  What was summarised – it says:

the Tribunal was satisfied that the evidence did not suggest that his general knowledge of this put him at risk of serious harm now.

There is simply nothing misleading.  It is taken almost word for word from the Tribunal.  That being the case, in my submission, there is nothing behind the applicants’ challenge to the alleged misleading information in Annexure C.  That being so, putting aside the various other hurdles, there is no seriously arguable point in that respect, I would submit.

Then just in relation to the broader point on the construction of section 417, your Honour asked what was the importance or significance of subsection (2) of that section.  Subdivision AA and AC of Division 3 of Part 2 which it says the Minister is not bound by are the provisions which, in effect, set up the visa criteria and which require the Minister to give a visa according to visa criteria.  So by saying that he is not bound by it means that he can give any visa he wants irrespective of whether they meet the criteria.  That is the significance of it.

Section 417(7) is there because if it was not there the argument that the applicant or an applicant would put would be no doubt, “Well, yes, the Minister has this discretion and he may or may not exercise it but he at least has a duty to consider whether or not to exercise it.”  That would be the argument that one might expect to be put by an applicant.  Now, subsection (7) shows that Parliament rejects that and wants to make it clear that there is no duty to consider whether to exercise the power.

My friend seeks to get around that by saying there is a duty to consider whether or not to consider whether to exercise the power.  In my submission, it is not open and that is not a seriously arguable point.  So on that view it is open to the Minister to have guidelines.  I note the Full Court of the Federal Court in a decision called Bedlington v Chong (1998) 87 FCR 75 considered this issue and said that guidelines were an appropriate ‑ ‑ ‑

HER HONOUR:   It seems that guidelines only operate in respect of a second application or – no, I am sorry, that is not right, but this was a second application.

MR LLOYD:   The guidelines deal with both a primary application and a secondary application.  What the guidelines say in relation to a secondary application is that the Minister will only consider exercising his power if there has been a change of circumstances which brings it otherwise within the guidelines.  So in that sense, you know, that is the only relevance of the guidelines and they only relate to a decision which, in my submission, is not even being challenged on the draft order nisi.

I have not taken the Court to every aspect of the Tribunal’s reasons which support the proposition, but I think even my friend acknowledged that the thrust of the Tribunal’s decision was, “Yes, we accept that you may have some information which the general wanted you to be silent about.  We accept that the general asked you to be silent about it.  We accept that you had some threatening phone calls in 1996.  We accept that somebody went and saw your father in early 1997.  However, in mid‑1997 the general was absolved and when you left the country you didn’t do it at all quickly.  You waited 10 weeks after you got the visa, which is not” – and this is at page 18 at about point 4 – “you waited for 10 weeks after you got the visa before you left, which is not indicative of somebody who is at that time fearing for their life.”

Now, in those circumstances it is, in my submission, unarguably clear that there is nothing Wednesbury unreasonable in the approach of the Tribunal in saying what it said, “Yes, maybe there was a time when you were under some hazard from the general if you weren’t silent but, as things turns out, the general got off and you didn’t leave quickly and that is indicative of somebody who isn’t afraid of their life.”

Now, that brings me to the first part of my friend’s case which deals with the challenge to the RRT decision.  The first point perhaps to be made is that putting aside anything else, the draft order nisi does not seek an enlargement of time.  It does seek a writ of certiorari which has a six‑month time limit.  That six‑month time limit well and truly expired by the time that the current proceedings were commenced.  So the applicant would need to justify the extension of time.  The only evidence the Court has which goes to that issue is paragraph 25 of the applicant’s affidavit of 6 June 2002.  That affidavit, in effect, says that they did not have an idea that they could appeal.

HER HONOUR:   This is 6 June.

MR LLOYD:   Paragraph 25.

HER HONOUR:   Yes.

MR LLOYD:   I see that there is a different date, as my friend notes, at the beginning and the end of that affidavit.  Now, I have not had an opportunity to cross‑examine but I would seek to tender for the Court’s information, and if the matter goes further it would have to be dealt with, a letter ‑ ‑ ‑

HER HONOUR:   Have you a copy for Mr Shaw?

MR LLOYD:   I have provided my friend a copy.

HER HONOUR:   Is there any objection to this?

MR SHAW:    No, your Honour.

HER HONOUR:   It will mark it Exhibit 1 in case ‑ ‑ ‑

EXHIBIT:              Exhibit 1     Letter sent to the Applicant

MR LLOYD:   This is a letter sent to the applicant with a copy of the decision and your Honour will note the fourth paragraph informs them that they have a right to seek review in the Federal Court and that there is 28‑day time limit.  So to that extent at least they were on notice that they had an ability to review.  Now, they may or may not have had money, but this Court and the Federal Court sees people without money all the time.  In my submission, there is no justification for an enlargement of time in this case.  That is made all the stronger when the merit of the case is so weak.

As I understand it, there is only two points put.  The first is that the decision is Wednesbury unreasonable.  I have already made a submission that in my view that is not arguable.  The second is that on the basis of certain international documents there is an obligation to give natural justice.  I am not sure if my friend did not by the end of your Honour’s questioning accept that there was no breach of that obligation, but I would submit that the legislative history will reveal that section 427(6) is referable to include at least the applicant when it provides that it is not entitled to representation.

In practice, as I understand it, people, in fact, if they do have a migration agent, they can be represented but there is no entitlement.  There is no evidence of a request and, in my submission, there is no breach.  That being the case, the Court simply will not get to the more perhaps interesting questions on the judicial power point.  I should for the sake of completeness say that my friend’s argument on the judicial power points in paragraph 18 are premised upon the incorrectness of the decision of the Full Court in SZ v The Minister.  I simply observe that there was a special leave application in that matter and this Court, upon which your Honour sat, considered that there was no error in the answers of the reasons of the Full Court in that matter and, as a result, special leave was refused.  So at least to that extent I would submit that the judicial power argument is not, in any event, arguable.

For all of those reasons – well, perhaps I should also just for the sake completeness say that my friend’s written submissions go further perhaps than his “unreasonableness” ground that he put orally.  In my submission, they all only go to errors of fact.  The Tribunal made certain findings.  It did not adopt the approach of the primary decision‑maker.  On the contrary, its decision is inconsistent with the primary decision‑maker.  The Court should not infer, or even find that it is arguable to infer, that any error was adopted or assumed and, indeed, we would not even accept that there was an error, but be that as it may.  I have nothing further, your Honour.

HER HONOUR:   Yes, thank you, Mr Lloyd.  Yes, Mr Shaw.

MR SHAW:   Your Honour, the only matter I would wish to deal with in reply concerns the argument that we are outside of the six‑months time limitation to obtain a writ of certiorari and I just want to say a few short points about that, or in response to that.  Firstly, it is clear by reason of Order 64 and, in particular, rule 2 of the Court’s Rules that the Court can relieve against that and we submit that ‑ ‑ ‑

HER HONOUR:   But, in any event, you seek prohibition.

MR SHAW:    We do.

HER HONOUR:   And you only seek certiorari as ancillary to it.

MR SHAW:    Well, that is so.

HER HONOUR:   And there is no time limit on prohibition.

MR SHAW:    I do not believe so, your Honour, yes.  But could I just say this:  it was not unreasonable for the applicants to await the ultimate decision of the Minister and we are within six months of that ultimate decision.

Secondly, according to the affidavit of the applicant of 7 June 2002, he did not have a complete record of the matter.  He did not have all the papers until May 2002.  He points to language difficulties and lack of familiarity with the Australian legal system and he also points to lack of legal representation until very recently.  If your Honour pleases.

MR LLOYD:   Your Honour, perhaps just in relation to that, I should say my friend only seeks a writ of certiorari in relation to the RRT decision.  That is the only point ‑ ‑ ‑

HER HONOUR:   Yes, but the primary relief that is sought is prohibition, is it not?

MR LLOYD:   No, your Honour, not in relation to that relief.

HER HONOUR:   Well, the prohibition is to prevent anybody acting on the decision.

MR LLOYD:   The prohibition is sought in relation to the 18 February decision in paragraph 1.

HER HONOUR:   “Prohibition, injunction, certiorari and mandamus” in respect of the Minister’s ‑ ‑ ‑

MR LLOYD:   That is the section 417 decision.

HER HONOUR:   First 417, or second?

MR LLOYD:   The first 417 decision.  In relation to the RRT decision ‑ ‑ ‑

HER HONOUR:   They seek to quash it.

MR LLOYD:   ‑ ‑ ‑ they seek certiorari.

HER HONOUR:   “To prevent the First Respondent, or his delegate, taking, or causing to be taken, any action to remove.”  That must relate back to the Tribunal’s decision.

MR LLOYD:   Paragraph 3 only relates to “pending the determination of” this application.  That is interlocutory relief, and his Honour Justice McHugh has said that it is inappropriate to seek a writ of prohibition in relation to interlocutory relief, that the appropriate thing is to get interlocutory injunctions.

HER HONOUR:   I just say it is not a well‑drafted order nisi.  I did not think it was at the time.  The question whether it is or is not within time is really a trivial question in the context of these things, particularly in the context of an application for prohibition and in the context in which were an application made to amend the order nisi, leave would almost certainly be granted to do it, and is regularly granted in cases of this sort. 

So, let me say at the beginning, to the extent that it might be necessary, I grant leave to bring the application out of time.  I also say, to the extent that it might otherwise be necessary, I would, if requests were made, grant leave to the applicants to amend their order nisi to make it clear that they challenge the Minister’s second 417 decision and to make clear the grounds on which that challenge is made; also to seek relief by way of a permanent grant of prohibition.  They are applications I would grant if made and if they were necessary.

However, that having been said, the application for an order nisi will be dismissed.  I am not satisfied that there is an arguable case that the Tribunal’s decision is so unreasonable that no reasonable person could reach that decision, that being the ground on which it is asserted there is jurisdictional error which would entitle this Court to grant relief assuming that the privative clause provisions enable it to do so.

Nor am I satisfied that it is arguable that the Minister was bound himself to consider the second application pursuant to section 417 of the Act for him to substitute a more favourable decision than that that had already been made.  It seems to me, in light of the terms of section 417(7) of the Act, it is well open to the Minister, if that is what has been done, for him to issue guidelines as to the circumstances in which he will consider second applications for the exercise of discretion under that section.

Accordingly, the application is dismissed.  It would ordinarily be dismissed with costs.  Do you seek costs?

MR LLOYD:   I do seek costs, your Honour.

HER HONOUR:   Do you seek to speak against costs, Mr Shaw?

MR SHAW:   I do, your Honour.  These are poor and disadvantaged people.  They raised legal and constitutional matters which, I think, it probably was conceded were of substance and so the litigation can be construed as public interest litigation, albeit that it has failed on the grounds that your Honour has articulated.  So, we oppose costs.

HER HONOUR:   No, I see no reason to depart from the ordinary practice.  It will be dismissed with costs.  I will certify for the attendance of counsel.

AT 10.51 AM THE MATTER WAS CONCLUDED