Hari Das & Anor, Ex parte - Re MIMA & Anor

[2002] HCATrans 505

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M47 of 2001

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADOLFO GENTILE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

VIVEKANANDA HARI DAS and MAHALEDCHIMY HARI DAS

Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 28 NOVEMBER 2002, AT 9.35 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN:   May it please the Court, I appear for the prosecutors.  (instructed by Ravi James & Associates)

MR C.J. HORAN:   If the Court pleases, I appear for the respondents.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I have certificate from the Deputy Registrar that she has been informed by the Australian Government Solicitor, solicitor for the second respondent, that the second respondent will submit to any order of the Court save as to costs.  How long do you expect this matter will occupy?

MR KROHN:   Your Honour, I intend to seek an amendment and to propose a course in accordance with minutes of orders I have drawn.  I understand my learned friend will oppose.  But if your Honour were minded to accept the amendment, then your Honour need not trouble with it further.  If your Honour does not accept the amendment, then it is in your Honour’s hand but it might involve argument on various issues.  Perhaps if I might indicate ‑ ‑ ‑

HIS HONOUR:   It is a very long answer to a simple question of how long, Mr Krohn.  It usually provokes an answer in numbers.

MR KROHN:   Perhaps the best answer, your Honour, I hope two minutes but your Honour and my learned friend ‑ ‑ ‑

HIS HONOUR:   That is counsel’s two minutes, Mr Krohn.  Yes.

MR KROHN:   ‑ ‑ ‑ may torpedo that, your Honour.

HIS HONOUR:   Yes.  Well, perhaps if we go on.  Yes, Mr Krohn.

MR KROHN:   Your Honour, two preliminary matters:  the first is that I have an affidavit sworn yesterday by my instructing solicitor which has not yet been filed although a copy, I understand, has been served upon solicitors for the first respondent, and I seek leave to file that in the Court.

HIS HONOUR:   Yes.  Have you seen this affidavit, Mr Horan?

MR HORAN:   I do not believe I have, your Honour.

HIS HONOUR:   Yes.  Is there any reason why I should not read it?

MR HORAN:   No, your Honour.

HIS HONOUR:   Yes.

MR KROHN:   I had understood – I must apologise to my learned friend.  I had understood that a copy was served.  I will need to seek instructions on that.  Perhaps, depending on the course that your Honour chooses to take, it may not be necessary to go into the matters deposed to in that affidavit, your Honour.

HIS HONOUR:   Well, yes, I will put that aside for the moment.  How then do we proceed, Mr Krohn?

MR KROHN:   Yes, your Honour.  The second matter is I seek leave to amend the draft order nisi herein and I propose that the Court make orders in accordance with the minutes which are being handed up to your Honour.  I understand my learned friend opposes any amendment.  The amendment which is proposed goes to that part of the matter dealing with the Tribunal’s decision.  Your Honour may have seen that, essentially, two things are sought to be challenged:  a decision of the Refugee Review Tribunal and a determination by the Minister pursuant to section 417 of the Act.

The proposed amendments add grounds in relation to the challenge to the Tribunal decision.  They are, in my submission, distinct grounds from those which were in the draft order nisi in the previous High Court matter.  I am not sure if your Honour is familiar with the history of the matter.

HIS HONOUR:   Yes, I am, and the fact that the order nisi which was filed is, I think, substantially, if not completely, identical with the order nisi that was granted in the earlier proceedings and part remitted to the Federal Court, part kept in the this Court and later, as to both parts, dismissed by consent.

MR KROHN:   It is substantially identical in relation to the challenge to the Tribunal’s decision, your Honour.  I would submit that there are significant differences or at least a significant difference in relation to the challenge to the 417 determination but I note that the previous High Court proceedings were dismissed by consent.

HIS HONOUR:   As were those parts of the proceedings that had been remitted to the Federal Court, were they not?

MR KROHN:   That is so, your Honour.  The affidavit ‑ ‑ ‑

HIS HONOUR:   You speak of a section 417 decision.  Is this a case in which the Minister has said that he does not propose to exercise his powers or consider exercising his powers under 417?

MR KROHN:   No, your Honour.  This is a case where the Minister did consider the exercise of his powers and determined not to exercise the discretion and that is relevant to the previous dismissal in this way, that your Honour will see – and I can take your Honour to it if necessary – that in the material, particularly in the affidavit sworn yesterday, the previous High Court and remitted Federal Court proceedings were dismissed by consent.  That was done because it was intimated to the prosecutors that the Minister was unable to consider the 417 request as long as litigation was on foot but that if that litigation ceased and, specifically, if it was dismissed, he would consider the exercise of his discretion.

The initial negotiations conducted on behalf of the prosecutors by their solicitor, who is my instructor in the present matter, were along the lines of withdrawal or discontinuance but it was made clear and apparent that only dismissal would suffice.  So that both those previous proceedings were dismissed without any argument at all on any grounds.  Now, I accept that it was an order of the Court; it was dismissal, but if your Honour grants the amendments which I propose, they go to quite different grounds of challenge to the Tribunal and would not, in my submission, be barred by res judicata.  If your Honour does grant those ‑ ‑ ‑

HIS HONOUR:   Well, do you accept that res judicata is engaged in constitutional writ proceedings?

MR KROHN:   I accept that the authorities state that res judicata is engaged in dismissal of proceedings inter partes even by consent.

HIS HONOUR:   There is the difficulty, is it not, or part of the difficulty?  Are constitutional writ proceedings properly regarded as proceedings inter partes?  Who are the parties to it?

MR KROHN:   It is a difficulty, your Honour, particularly when the proceedings – well, perhaps, especially in proceedings where they have not proceeded beyond the application for order nisi, but I note that in these proceedings an order nisi was granted although only in part and, as I understand the history, the challenge to the 417 was ultimately dismissed by consent when the remainder of the High Court proceedings was dismissed.  I do not take there to have been any previous order in relation to the grounds dealing with the 417 application.

HIS HONOUR:   I am not sure that that is right but I do not think for the moment that anything may turn on it.  I thought – I may be wrong – that what was done was to grant an order nisi encompassing all live grounds and remit part of the proceeding thus created to the Federal Court, retaining part of the proceeding thus created in this Court.  As I say, for the moment I am not sure that anything turns on that aspect of the history. 

MR KROHN:   I agree with that.

HIS HONOUR:   Rather, the question that may lurk beneath all of this, which I express no view on, is what is the consequence of dismissal or discharge of an order nisi?  There seems to me, if you go, for example, to Spencer Bower Turner and Handley on Res Judicata in the third edition, particularly at paragraphs 3, 5, 6 and following, to be some questions raised, particularly by some obiter dicta in Reg v Secretary of State for Environment; Ex parte Hackney London Borough Council [1983] 1 WLR 524 and, on appeal, [1984] 1 WLR 592 about just what effect is to be given to the discharge of an order nisi.

Now, I have not had the time to look carefully and I do not know whether that stream of authority – that is perhaps elevating it beyond where it should be – but those views were taken into account in Federal Court cases, looking at the application of res judicata, Anshun estoppel, and the like, because again underlying all this there may be a deep‑rooted problem – I do not know – about whether these concepts have application in public law proceedings.

MR KROHN:   That also is an issue, your Honour.  In relation to the first point your Honour raises, my understanding of the authorities on res judicata is that they focus on or assume proceedings in which there has been final judgment and disposition and to that extent, in my submission, it is not clear that res judicata applies to what has occurred in these proceedings.  One of the cases which – no doubt your Honour has a number of the authorities which review the history on the matter.

HIS HONOUR:   There seemed, at least, to be an arguable point of view that a consent dismissal does give rise to res judicata, does give rise to issues estoppel, perhaps narrowly confined.  It seems to be an arguable point of view at least.

MR KROHN:   Yes, your Honour, but I would submit that it is also arguable that the doctrine of res judicata is confined in a way that does not touch the present proceedings.  If that is so, for the sake of argument, your Honour, one is then in the area of the discretion of the Court in dealing with, possibly, matters of issue estoppel or Anshun estoppel.

HIS HONOUR:   Or a more generally based discretion that might be said to be engaged in judicial review proceedings.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   You applied for one order nisi.  You agreed to its dismissal.  Why should you be permitted to come again?

MR KROHN:   Yes, your Honour.  Well, to that extent the circumstances of the dismissal of the previous proceedings is relevant and that when there is a situation where proceedings have been brought in this Court, an order nisi has been granted, part of the proceedings have been remitted and, then, because of information coming from the respondent’s department which appears to be relating to a matter of policy rather than law, that the request then pending relating to section 417 could not be dealt with while there was pending litigation and then when there were negotiations and when the initial proposal coming from the prosecutors’ solicitors was for withdrawal or discontinuance, both allowed by the Rules of this Court and the Federal Court, and when the insistence is rather that the 417 request will be considered only if the proceedings are disposed of by dismissal, then, in my submission, there is an appropriate reason for the Court, in its discretion, to say here is a situation where – and perhaps there are not many of them – a subsequent application for order nisi is one which ought not to be barred on discretionary grounds, it should be permitted to proceed, if there are grounds to make out, grounds of review and relief.  Put very simply, your Honour, that is the situation, in my submission.

Now, your Honour, the course which I propose is that if your Honour is minded to allow amendments to the grounds relating to the Tribunal decision – and I can take your Honour to the points of the Tribunal decision to show that these are distinct grounds and that they are not peripheral points.  They go to the centrality of the Tribunal decision, in my submission.  Then it is open to your Honour to remit even just that part of the application for order nisi relating to those grounds but I would propose remitting the application for order nisi to the Federal Court in part.  The part that your Honour cannot remit is the part that relates to anything outside the old Part 8 grounds but the proposed additional grounds are grounds which, in my submission, can be advanced upon remitter.  If your Honour were to do that, then it is at least possible that this matter might be disposed of upon the remitter in the Federal Court.

HIS HONOUR:   On the originally filed draft order nisi in the present proceeding, which grounds, if any, do you say would not be open to remitter?

MR KROHN:   In relation to the 417 grounds, none, in my submission, can be remitted.

HIS HONOUR:   Sorry, let me just get the draft order.  I have it now.  Can you identify them by paragraph?

MR KROHN:   Yes, your Honour.  I noticed this morning there seems to be an error in the paragraph numeration.  If your Honour turns to paragraph 3 where that first appears, all of paragraph 3 relates to the Minister’s determination under section 417 and, in my submission – and I understand at least on this point my learned friend agrees with me – none of that can be remitted because the determination was made prior to the commencement date of the current Part 8 of the Act and, as I understand it, it is not a judicially reviewable decision and not within the jurisdiction of the Federal Court upon remitter or, perhaps, it might be more correct to say not within the power of the Federal Court upon remitter or, perhaps, both.

HIS HONOUR:   Yes.

MR KROHN:   But then if your Honour turns to the second last page of the draft order, there is another paragraph there marked 3 which really ought to have been numbered 4, it would appear.  In my submission, at least the ground marked (i) that, in part, could be remitted but not so far as it refers to breach of natural justice.  Ground (ii) could be remitted.  Ground (iii) could be remitted.  It is for the reason that there was that perhaps doubt about (i) that in the minutes of orders I have proposed, I have adopted a form of order – in fact it was the form of order which your Honour made in the previous High Court proceedings.

HIS HONOUR:   That was positively to grant an order nisi.

MR KROHN:   It was but the relevant point here, your Honour, is in relation to the way in which any remitter would be framed and it is for that reason, because of dealing with the old Act, that if your Honour looks at the proposed minutes I handed up this morning, on page 3, your Honour, at paragraph 2 of the proposed order, rather than rehearsing verbatim grounds from the draft order, I have rehearsed the heads of the old Part 8 of the Act under which the Federal Court would be able to deal with the matter and that was a form which was adopted in your Honour’s order.  I accept it was an order nisi but it seems to me, in my submission, perhaps an appropriate way of doing it.

HIS HONOUR:   Now, insofar as you are met by arguments of estoppel, whether strict estoppel, Anshun estoppel or considerations of discretion, am I right in understanding you to say that you wished to put as either a complete or part answer to those arguments that it is necessary to take account of what happened after the grant of order nisi in this Court?

MR KROHN:   Yes, your Honour, as a part answer.

HIS HONOUR:   I understand that.  That involves, does it, examining questions of why your clients acted as they did?

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Unless those questions were matters of agreed fact, it would seem possible, would it, that there would have to be some examination of witnesses?

MR KROHN:   That might depend more on my learned friend than myself, your Honour.

HIS HONOUR:   Exactly so.

MR KROHN:   The affidavit filed in Court this morning, your Honour, appends – and I understand that an affidavit sworn a couple of days ago by Emily Nance appends part of the correspondence between the prosecutors, the respondent’s solicitors and other persons and ‑ ‑ ‑

HIS HONOUR:   I understand that but if it is necessary to consider the state of mind of your client, that is either agreed or it is going to be the subject matter of evidence – oral evidence.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Which suggests that if there is to be a trial of such issues, it should take place elsewhere.

MR KROHN:   I would agree with that, your Honour, with respect.

HIS HONOUR:   And, on its face, would seem to clutter any proposal either to make the application returnable before a Full Court to pick out these arguments of estoppel and the like.  Well, I think I understand the position from your point of view, Mr Krohn.  It may be of assistance if I heard from Mr Horan, I think.

MR KROHN:   If your Honour please.

HIS HONOUR:   Mr Horan, you have heard the kinds of question that I raised.  Some of them are questions that I think may require quite extensive argument to get to finality.  The questions of estoppel and the like are, I  think, rather more vexing than I at first thought they were.  Can you point to any authority of this Court or a final court that would apply notions of

estoppel as distinct from discretionary bar to dismissal of earlier proceedings for prerogative or constitutional relief?

MR HORAN:   I am not aware of any which directly involve this Court’s jurisdiction to grant prerogative relief.  In Somanader, which is Justice Merkel’s decision, a proceeding which was commenced in this Court’s jurisdiction and remitted, his Honour took the view that res judicata principles could apply to applications for judicial review and cited two authorities which I presume dealt with either the Administrative Decisions (Judicial Review) Act or perhaps section 39B rather than this Court’s jurisdiction.

HIS HONOUR:   AD(JR) proceedings I see as much closer to proceedings inter partes.  It is the public nature of these proceedings that is the root cause of the sorts of uncertainties that started to crowd on my mind at about 9.15 this morning when I had previously thought that the problem was relatively straightforward.

MR HORAN:   Unfortunately, they started to crowd on my mind a little bit later than that.

HIS HONOUR:   About 9.35, Mr Horan.

MR HORAN:   But I appreciate the issues that your Honour has raised.  In my submission, if an application for an order nisi was not granted and was dismissed or withdrawn, then that would – perhaps, strictly speaking, it is an ex parte proceedings at that stage ‑ ‑ ‑

HIS HONOUR:   That leads you off into the habeas cases and the habeas cases are, I think, not altogether clear about whether you can go from judge to judge seeking habeas.

MR HORAN:   Yes.

HIS HONOUR:   Again, is habeas different from the other constitutional writs?  I do not know.

MR HORAN:   In one sense, habeas could be because it would be directed at the circumstances at the particular occasion when the writ was sought as opposed to a case such as this where the decision is a past event and it was either valid or invalid.

HIS HONOUR:   Though prohibition, after all, is looking forward.

MR HORAN:   Yes.

HIS HONOUR:   At least in the sense of saying this far and no further.  Mandamus looks forward and ‑ ‑ ‑

MR HORAN:   In my submission, those two writs, although certiorari in the jurisdictional sense, is incidental to prohibition or mandamus.  It would be difficult to obtain prohibition or mandamus if one could not first quash the decision via certiorari.

HIS HONOUR:   Perhaps.  There is, I fear, Mr Horan, a quite deep‑seated question about 75(v) jurisdiction and it is, I think, a large decision to take that notions of res judicata and estoppel, strictly so called, or Anshun, necessarily apply.  Ordinarily that might suggest, “Well, let’s see if it can be shorn of difficulties and presented to a Full Court”, but that leads me on to can we shear this case of difficulties in a way that would present a sufficiently defined issue to warrant making the application returnable before a Full Court or part of the application returnable before a Full Court.  For the moment, it is not evident to me that we can.

MR HORAN:   On the initial order nisi it is a fairly straightforward question.  The grounds are relevantly identical:  is it open to the applicant to pursue an application relying on those identical grounds?  It may be that in the light of my learned friend’s application for amendment, that that is perhaps a threshold question or preliminary question because I oppose that amendment on the basis of the time at which it is made and the fact that it seems to be an attempt to define some grounds which are different to the ones run before.

HIS HONOUR:   That is an uncharitable way to describe it, Mr Horan.

MR HORAN:   Perhaps.  Well, I withdraw that then, your Honour.

HIS HONOUR:   No, no, the fact that it lacks charity may not make it untrue.

MR HORAN:   The substantive response that the Minister would make to those grounds would, of course, be Anshun estoppel, that those grounds could and should have been raised by the earlier application.

HIS HONOUR:   Yes, and I take it, also would seek in any event, if all of that failed, to root it in more general notions of discretion to refuse relief or refuse extension of time. 

MR HORAN:   Yes.

HIS HONOUR:   I understand that and I understand the power of those arguments.  What then do we do about – if we somehow segmented that, that leaves open the answer which Mr Krohn foreshadows which is, “Oh well, if you take account of why these events happened, that somehow excuses or permits or should allow me to do it now.”  What troubles me is that sounds like oral evidence territory.

MR HORAN:   Yes, and it is also ‑ strictly speaking, if res judicata applies, then the discretionary factors do not become relevant.  If it does not apply, then it is not something, perhaps, which this Court should be going into evidence on and considering.  But also the Anshun estoppel point is perhaps something also which – adopting the approach which your Honour adopted in August where there was a series of applications which raised Anshun estoppel rather than strict res judicata, that it is because examination needs to be undertaken of the circumstances and whether there are some exceptions to Anshun estoppel, that that is an exercise which perhaps would be more appropriately dealt with by a single judge of the Federal Court.

So, if the amendment is allowed, the strict res judicata point falls away because the grounds – I take it from the draft minutes that the earlier grounds would be omitted from the draft order.

HIS HONOUR:   What I would be minded to consider, Mr Horan, is to make no order granting any leave to make any amendment but to frame an order in a way that did not bar the making of the application for leave to amend before a Federal Court judge, because it seems to me the decision to grant leave is at least in part – perhaps wholly – bound up in these other issues that arise and, again, I get edgy about segmenting it.

MR HORAN:   Yes.  I would not oppose that course either, your Honour.  Of course there will be the issue of costs, given that until this morning the application looked less fertile than it perhaps now does.  The other issue is the section 417 decision and that, as my learned friend points out, is not something that the Federal Court has jurisdiction in respect of.  So that would have to remain here.  I would submit that is something which can be dealt with by your Honour today because the grounds ‑ ‑ ‑

HIS HONOUR:    How do I deal with that, do you say, Mr Horan?  What do you say I should do with the 417 aspect of it?

MR HORAN:   By dismissing that part of the application that seeks to review the refusal to exercise ‑ ‑ ‑

HIS HONOUR:   And on what basis do you say I should dismiss it?

MR HORAN:   On the basis that the grounds relied upon are self‑evidently unarguable in the light of the absence of a duty to consider the exercise of the power and in light of the fact that on the – I mean, I can take your Honour through the ‑ ‑ ‑

HIS HONOUR:   Just let me think aloud a moment if I may about this, Mr Horan.  Assume for a moment the actual exercise of 417 power was flawed as alleged or in some way.  Assume that against you.

MR HORAN:   Yes.

HIS HONOUR:   That would lead to quashing of the decision?

MR HORAN:   Yes.

HIS HONOUR:   Could there, then, in face of the statutory provision saying the Minister need not exercise this power, be an issue of mandamus to compel re‑exercise?

MR HORAN:   Yes, precisely, your Honour.  There would not be – even if successful, the applicant could quash the existing decision but there would be no power to require a further consideration of the matter.

HIS HONOUR:   Does it follow from that that even if the grounds alleged are made out – and I understand you say they are baseless and self‑evidently baseless, but even if they were to be made out, relief of the kind sought, certiorari, should be refused as futile?  Is that where we get to on that chain of argument?

MR HORAN:   Yes, your Honour.  I would perhaps need to think about that further.  The applicant will no doubt say that it would still provide him with some relief to have that decision removed.

HIS HONOUR:   Why?  I know that is his argument but why do you say it might?

MR HORAN:   One might think that perhaps – the only thing that it could be relevant to is the application of departmental guidelines on a subsequent application as to whether or not the matter is treated as a subsequent application which would be referred to the Minister or not.  So, it may have some factual ‑ ‑ ‑

HIS HONOUR:   I see.  Is there a guideline saying that once you have had a 417, you do not get a second go at it?

MR HORAN:   I am not aware of the content of the guidelines but that may be a relevant factor in whether or not something is placed before the Minister, if it is a second or a third application.  So, in that sense, the certiorari may have some small effect.

HIS HONOUR:   Yes.  If we were to remit that part of the proceeding which was not involving 417, what virtue is there in my deciding whether you are right to say that the 417 application is groundless?

MR HORAN:   Only that there will then be – the entirety of the proceeding will be dealt with and nothing will be left before this Court.  Part of the application will be before the Federal Court and once that is disposed of there will not be any need to come back to this Court to deal with the balance of the application.

HIS HONOUR:   Yes.

MR HORAN:   I must say some of the grounds which are contained in relation to the section 417 decision appear to have been copied from the earlier proceeding which did involve a situation where there was a refusal to consider exercise of the power and seemed to bear no relation to the current facts where the Minister did, in fact, personally exercise the power.  So, several of the grounds attempt to attack the decision on the basis it was not made by the Minister personally or no personal consideration had been given, but those grounds clearly are just inconsistent with the current facts as opposed to the facts which pertained on the last occasion.

HIS HONOUR:   Well then, other than, in effect, cleaning up the record and having nothing left pending in this Court, do you point to any other reason for my embarking on the task of deciding whether the 417 grounds are baseless?

MR HORAN:   No, your Honour, only that it needs to be dealt with at some stage.  It may as well be dealt with at the outset rather than leaving it to another day.

HIS HONOUR:   May it, in any way, be affected by the ultimate decision on res judicata and the like?  If your arguments of res judicata or variations on that theme succeed, is that a complete answer to the 417 allegations now made?  Probably not.

MR HORAN:   The res judicata point – in fact, no issue estoppel point is raised in relation to the section 417 decision because the section 417 decision reviewed on this occasion is a different decision to the one ‑ ‑ ‑

HIS HONOUR:   There is now a decision, not a refusal to exercise power or declining to exercise power?

MR HORAN:   Yes.  So, in that sense they are discrete parts of the proceeding.

HIS HONOUR:   Yes.

MR HORAN:   All I might say just briefly on the substance of the grounds, aside from the contention that the Minister did not make the decision personally, most of the grounds relate to an allegation that the Minister inflexibly applied recommendations or advice from his department or from his advisers or inflexibly applied policy guidelines.

HIS HONOUR:   And why is that self‑evidently unarguable?

MR HORAN:   Primarily, because of the briefing note which went to the Minister.

HIS HONOUR:   Yes, I have read that.

MR HORAN:   Which shows that, in fact, no recommendation was put as to the exercise of power either way, I believe. 

HIS HONOUR:   Which exhibit is that, the briefing note?

MR HORAN:   I think it is exhibit EJN-12.

HIS HONOUR:   Yes, I have that.

MR HORAN:   My copy is, in fact, not complete.

HIS HONOUR:   Page 5 contains a heading “RECOMMENDATION”.  It reads – do you have that?

MR HORAN:   I am sorry, I am missing the final pages.

HIS HONOUR:   You never brief counsel with all the papers, Mr Horan.  It would remove the excitement. 

MR HORAN:   I might have it elsewhere in my brief though, your Honour.  Yes, I think I do.  Yes, the recommendation, on page 5, I have that.

HIS HONOUR:   Yes, paragraph 11: 

That you decide whether

(a)  you will consider exercising . . . and, if so;

(b)  to grant . . . and

(c)  to sign . . . 

OR

(d)  you will not exercise . . . and, if so . . . 

(e)  to sign the –

instrument.

MR HORAN:   So, there were alternative letters, in fact, provided and the contents of the briefing note contains, at paragraph 6:

The main claims and features of this case that might elicit a humanitarian response –

and at paragraph 7:

Countervailing issues and other matters you may wish to consider ‑ ‑ ‑

HIS HONOUR:   Yes.

MR HORAN:   Now, it cannot be said that anything in that briefing note is in some way improperly fettering the Minister’s exercise of the discretion personally.  There is also an allegation that the Minister’s decision was unreasonable but, again, there is no particulars given as to in what sense the decision was unreasonable and particularly given a broad discretion conferred on the Minister personally with provision for decisions to be tabled before Parliament and so on, it is not something – it would have to get to an extremely high level before any unreasonableness ground could be established.

The applicant does not get any comfort either from previous decisions of this Court which primarily, I would concede, considered situations where there has been a refusal to consider the exercise of the power although in some cases that has been the Minister personally refusing to consider.  But none of those cases suggest that there is any substantial foothold for judicial review of decisions of this nature.

So, if the Court pleases, if your Honour is minded not to deal with the amendment question in relation to the Tribunal’s decision, that is perhaps a matter which then should be left to be dealt with below.  In relation to the section 417 decision, there is clearly no arguable case, and that can be disposed of today.

HIS HONOUR:   Yes, thank you, Mr Horan.  Well, Mr Krohn, two matters I think for consideration.  First, do you say anything against my refusing to deal with the application for amendment; simply leaving that to go over with no expression of view on remitter to the Federal Court where you may make that application and have it determined, having regard to that court’s view on the applicability of, among other things, notions of res judicata and issue estoppel?

MR KROHN:   I have nothing to urge against that course, your Honour.  Perhaps in relation to the issues of res judicata and issue estoppel, I have tried with relatively little success to think of perhaps succinct questions that might usefully arise from this case.

HIS HONOUR:   The difficulty is the answer you would seek to make to part of it, I think, Mr Krohn.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Let it be assumed res judicata and issue estoppel did not apply; let it be assumed that we were down at the level of Anshun estoppel or, perhaps, at the level of discretionary refusal, of constitutional relief.  There, you say, it matters why these events occurred and that just sounds to me like oral evidence territory.

MR KROHN:   Unless it were useful – I do not know whether it would be, your Honour – to stand it down to see whether the parties would agree about that but I suspect the probability is relatively slight.

HIS HONOUR:   I am at the moment far from persuaded that it is desirable to put this into a Full Court without the parties having had a trial at which they are compelled to decide how they will run their respective cases.

MR KROHN:   I understand, your Honour.  

HIS HONOUR:   The second issue then is what do I do, do you say, about the section 417 questions.  It is said against you the grounds proffered are manifestly unarguable.

MR KROHN:   Your Honour, in my submission, they are not manifestly unarguable and I can give your Honour indications of why but because, in my submission, they are not manifestly unarguable, it is appropriate for your Honour to remit to the Federal Court at this stage that part which your Honour is minded to remit and not to spend time on the 417 at present.

HIS HONOUR:   Could you state, without developing, the principal propositions you would advance in support of the grounds of attack on the 417 decision?

MR KROHN:   Yes, your Honour.  There is one ground which essentially is that having embarked upon the consideration of the exercise of discretion which it is certain that the Minister did in this case, that there were matters that were relevant which the Minister did not take account of and some of those are adverted to in the affidavit filed this morning, particularly issues raised in relation to the sons of the prosecutors and their connection with the LTTE. 

I would further submit, your Honour, that I find that I am also missing pages from EJN-12.  I would have to consider those to see what is there.  I was not aware that there was something headed “RECOMMENDATION”.  But I note also that the minute itself ‑ ‑ ‑

HIS HONOUR:   If you have not got that, have you the next folio, folio 205, which has the Minister’s action?

MR KROHN:   I have a folio headed “204” which is exhibit EJN-13.  That has a signature of the Minister.  Is that the one your Honour is ‑ ‑ ‑

HIS HONOUR:   No.

MR KROHN:   Then I do not seem to have 205, your Honour.

HIS HONOUR:   It really does add a certain element of sport to the litigation, does it not, when we are all working off different documents?

MR KROHN:   Perhaps that also, your Honour, may be a simple – a practical and perhaps not desirable but a simple reason why your Honour should not embark upon this today.

HIS HONOUR:   I do not know about that, Mr Krohn.  Not exactly persuasive for the applicant to say, “Dear me, we haven’t all got the same sorts of papers, therefore, put it over.”  I have heard better arguments from you, Mr Krohn.

MR KROHN:   I do not press it, your Honour.  Then I will attempt to find another, your Honour.

HIS HONOUR:   Tell me what your best point is on the 417 ‑ ‑ ‑

MR KROHN:   The best point, your Honour, is the failure to take account of relevant considerations.

HIS HONOUR:   And what were the relevant considerations not taken into account?

MR KROHN:   The relevant considerations were specifically the position and the effect on the prosecutors of their son’s connection with the LTTE.

HIS HONOUR:   And was that material that was put before the Minister in some identifiable way?

MR KROHN:   Yes, your Honour.  I understand that it is referred to in that affidavit of Mr Raveendran filed this morning.  There was further a consideration not, as far as I can see, adverted to by the Minister in exercising discretion and partly because I do not know what attachments there may have been – there are attachments referred to – but at least it would appear that one consideration which the Minister ought to have taken account of was the fact that the first prosecutor, the husband, had previously suffered treatment, interrogation under torture, which had resulted in physical injury, the loss of his finger, and it is not clear that the Minister has, in assessing humanitarian guidelines for return of people to Sri Lanka, considered whether one of the things to be put in the balance of the public interest is returning a person who has previously suffered torture and interrogation to the country where he did so.  In my submission, that is at least arguably a relevant matter to the question of public interest.

HIS HONOUR:   Yes.

MR KROHN:   And, your Honour, that also would raise, in my submission, when it eventually comes back, questions of issue estoppel, possibly, because, in my submission, it is raised more squarely under some of the grounds which are different in the present draft order nisi from those that were in the draft order nisi in the earlier proceedings. 

So, your Honour, for those reasons, in my submission, first, the application in relation to section 417 is not demonstrably unarguable.  Further, your Honour, I must respectfully disagree with my learned friend in relation to the futility of relief.  It is the case that the criteria under Schedule 2 of the Migration Regulations for the grant of a bridging visa, specifically a bridging visa E, in item 050.212, a distinction is there made on the eligibility for a bridging visa E, depending upon whether an application to the Minister or a request to the Minister under section 417 has been made and if one has previously been made, then you are not eligible for the grant of a bridging visa on that ground unless the Minister is personally considering it.  And there may be other provisions in the Regulations as well, but at least on that ground it would not be futile to grant prohibition, and the form of prohibition which would be useful to the prosecutor would be prohibition of the respondent Minister, himself, his agents, officers, and so on, from acting upon, relying upon or giving any force or effect to the previous determination.

I will not dwell on that, your Honour, but it was put that neither prohibition nor mandamus could be granted and therefore the application is futile and, in my submission, that is not the case.  Perhaps as your Honour may be aware, from time to time Parliament and the government make amendments to the Act and the Regulations and it may not be clear that it is futile to prohibit reliance upon a bad decision.

HIS HONOUR:   Yes.

MR KROHN:   So, if that may be taken as stating without developing the position, your Honour ‑ ‑ ‑

HIS HONOUR:   Yes, thank you, Mr Krohn.  Mr Horan, do you want to say anything in answer to the 417 aspect of it?

MR HORAN:   Two short points.  The first in relation to relevant considerations.  The briefing note, in fact, refers to the two very things that the applicants say were not taken into account, namely, at the top of page 3 that: 

the applicant claims that the Indian Peace Keeping Forces (IPKF) tortured him in 1988 –

and the following dot point:

The applicant believes that he will be persecuted if he returns to Sri Lanka, because of his sons’ membership of that organisation;

So, they were matters which were both put before the Minister as matters in favour of humanitarian consideration.  In any event, it is difficult, in my submission, with a discretion such as section 417, to say that there is any particular factor or consideration that the Minister is bound to take into

account.  Nor, as previous decisions of Judges of this Court have ruled, is there any obligation to revert to the applicant to seek further material.

In relation to the futility argument, I simply remind your Honour that in fact this section 417, it was in fact the second section 417.  So, irrespective of whether or not – perhaps even the third – the decision is set aside, the application of the criteria that my learned friend referred to would still produce the same result.  If the Court pleases.

HIS HONOUR:   Yes, thank you, Mr Horan.

Because I am of the opinion that part of the application for orders nisi should be remitted to the Federal Court, I do not think it convenient to embark upon consideration and determination of the arguments advanced on behalf of the respondent about what is alleged to be the lack of substance in those parts of the application which would not be subject to remitter.

To embark upon the consideration of the latter class of grounds would require a degree of detailed examination of the material and affidavits, one of those affidavits being only lately filed.  That being so, it is, I think, better to express no view on the points which counsel for the Minister has sought to advance in support of his contention that the grounds proposed are unarguable.  It is better that those arguments await determination at another time.

Subject to anything that counsel may say as to the form of the orders that I propose, I would order that there be remitted to the Federal Court of Australia so much of the application for orders nisi or certiorari, prohibition or mandamus, or injunction, directed to Adolfo Gentile constituting the Refugee Review Tribunal on the grounds being grounds set out as paragraphs 2(a) to (e) in the minutes of proposed orders, which I will initial and which will remain on the file, together with the application for leave to amend those grounds in the form of or to the effect of the grounds proposed in paragraph 1 of those draft minutes of orders.

Otherwise, I would adjourn the application for orders nisi to a date to be fixed.  There would then be the other consequential orders usual in a remitter.  Subject to what counsel may say as to costs, I would be minded to order that the costs of today should be costs in the application, and certify for counsel. 

Do counsel wish to be heard about the form of those orders?  Mr Horan?

MR HORAN:   Only in relation to costs, your Honour.  I would seek costs; that the applicant pay the respondent’s costs of today’s hearing, simply because the ‑ ‑ ‑

HIS HONOUR:   It is all terribly late and terribly thin.  Do I anticipate what you want to say, Mr Horan?

MR HORAN:   Yes, you encapsulate it in a nutshell, your Honour.

HIS HONOUR:   If you are right, that it is all terribly thin, and they are costs in the application, you will get them then, will you not?

MR HORAN:   The principal reason for my application is the lateness of the change in course by the applicant and that if it were not for that change in course, then there would have been substantial grounds for having this Court dispose of the matter today.

HIS HONOUR:   There would have been substantial grounds, I fear, for putting it into a Full Court, Mr Horan.  That would have been ‑ ‑ ‑

MR HORAN:   Well, perhaps, but the respondents would have had the opportunity to consider consent orders for remittal on the papers if the application had been initially in the form that it is now put.

HIS HONOUR:   Yes.  I understand what you say, Mr Horan, but I am minded to leave the order as I have proposed.

MR HORAN:   If the Court pleases.

HIS HONOUR:   There will be orders in those terms.

MR KROHN:   Your Honour, if I may just ask a question.

HIS HONOUR:   Yes.

MR KROHN:   When your Honour refers to the consequential orders usual in remitter, do I take that to include an order, effectively, that any necessary application for enlargement of time is to be governed by the Rules of this Court?

HIS HONOUR:   Yes.  It goes down to the Federal Court but the Rules limiting time are engaged in any event, subject to anything that the parties may say to the contrary, and I had simply taken that as a given, Mr Krohn.  Perhaps I am wrong but I thought that the time limit rules applied automatically.

MR KROHN:   I would not have mentioned it, your Honour, save that I was at a directions hearing before a judge of the Federal Court recently who was expressing some doubt about the situation.

HIS HONOUR:   Was expressing doubt.  My own untutored view was, Mr Krohn, that the time limits that apply are those that are to be found in the Rules of this Court.

MR KROHN:   May it please your Honour.

HIS HONOUR:   Thank you.

AT 10.35 AM THE MATTER WAS CONCLUDED