Jones v Bartlett & Anor
[2000] HCATrans 137
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S6 of 2000
In the matter of –
An application for a Writ of Mandamus, Writ of Certiorari, Writ of Prohibition and Injunction against THE HONOURABLE PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
MARGARET O’BRIEN, Tribunal Member of the Refugee Review Tribunal (RRT)
Second Respondent
Ex parte –
ALFREDO GOMEZ-RIOS
Prosecutor/Applicant
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 28 MARCH 2000, AT 9.41 AM
Copyright in the High Court of Australia
MR A. GOMEZ-RIOS appeared in person.
THE INTERPRETER: Your Honour, I am a Spanish interpreter. I have been booked to assist Mr Gomez-Rios.
ESTHER E. OLIVARES, sworn as interpreter:
MR S.J. GAGELER: I appear for the Minister, your Honour, with MR M.S. HENRY. (instructed by the Australian Government Solicitor).
The Minister, your Honour might note is not a Senator. He is a member of the House of Representatives.
HIS HONOUR: No, I noticed that. I was going to have that corrected. Do you appear for the second respondent, or does the second respondent submit - - -
MR GAGELER: I understand that the second respondent submits to the jurisdiction of the Court. I do not appear for the second respondent.
HIS HONOUR: Is there a representative present for the second representative who can indicate that to the Court?
MR GAGELER: No, your Honour.
HIS HONOUR: Well, I think we should proceed at the moment and just note that the second respondent is not present. The second respondent was whom? Remind me?
MR GAGELER: A member of the Refugee Review Tribunal who made the decision in the prosecutor’s case.
HIS HONOUR: Mr Gomez-Rios, you are the applicant in these proceedings and you are moving the Court on a draft order nisi. There is one small technical matter. The Minister is named as a senator. He is not a senator. And I would therefore intend to remove that title from the record. Do you have any objection to my doing that?
MR GOMEZ‑RIOS (through interpreter):Yes, I think.
HIS HONOUR: Well, I delete the word “Senator” from the record.
Mr Gomez‑Rios, are you represented by any lawyer or other representative today? Is there somebody who can speak for you or do you wish to speak for yourself?
MR GOMEZ‑RIOS (through interpreter):I speak for myself.
HIS HONOUR: Have you seen a submission that has been sent to the Court on behalf of the Minister?
MR GOMEZ‑RIOS (through interpreter):Yes.
HIS HONOUR: You now have an opportunity to say what you want to say in support of your application.
THE INTERPRETER: He wants to read something that he has in front of him.
MR GOMEZ‑RIOS (through interpreter):Your Honour, I do not have legal aid so I am not in a condition or in a situation that I can present my case in a verbal form. I ask your Honour to see my case according to the documents that I come to present to you today.
HIS HONOUR: Is there anything else you wish to say?
MR GOMEZ‑RIOS (through interpreter):No, nothing else.
HIS HONOUR: Very well. You might sit down and just listen to the advocate for the Minister then I will listen to you after you have heard what he has to say to the Court. Do you understand that?
MR GOMEZ‑RIOS (through interpreter):Yes.
HIS HONOUR: Very well. Yes, Mr Gageler.
MR GAGELER: Your Honour, I have attempted in the written submissions to unscramble the egg. I do not propose to go through in detail the matters raised in the written submissions.
HIS HONOUR: It is true that the applicant has a copy of the Minister’s written submission?
MR GAGELER: Yes, your Honour.
HIS HONOUR: And he has had that before the hearing today?
MR GAGELER: He has had it in a final form from me only as we commenced the hearing.
HIS HONOUR: Was he sent it in time that he would have had the opportunity to have it translated or explained to him?
MR GAGELER: No. I thought he had been sent it in draft yesterday but that is not the case, your Honour.
HIS HONOUR: So, he has only received it this morning?
MR GAGELER: That is correct. I can go through the points. I was really going to - - -
HIS HONOUR: I think you had better go through the main points so that in his presence and with the benefit of translation he can understand the points that the Minister makes.
MR GAGELER: Your Honour, the prosecutor challenges two decisions.
HIS HONOUR: I think he is an applicant at this stage. He only becomes a prosecutor if the order nisi is granted.
MR GAGELER: Your Honour is absolutely right. The applicant seeks to challenge two decisions. One is a decision of the Refugee Review Tribunal, the other is a decision of the Minister. The decision of the Refugee Review Tribunal is exhibit ASDON 4 to his affidavit. In substance, what the Tribunal found was that the applicant had a subjective fear of persecution if he were to return to Bolivia but the Tribunal was not satisfied that the applicant’s fear was well founded.
The findings and reasons of the Tribunal appear at pages 8 and 9 of that document. The passage with which the applicant appears to take issue is at about point 5 of page 8 where the Tribunal said:
Therefore, although the Tribunal has grave doubts about the credibility of the Applicant’s evidence due to the significant contradictions and confusions in his evidence, the Tribunal gives the Applicant the benefit of the doubt and accepts that he has some mental or physical disability which makes it difficult for him to give a clear and consistent account of his claims. The Tribunal therefore accepts his assertion, given under oath/affirmation, that his oral evidence is true.
Now, the complaint, as we understand it from the draft order nisi, is that that passage somehow gives rise to a reasonable apprehension of bias. There are three things to be noted about it: one, as is apparent from the previous paragraph, the approach of the Tribunal was prompted by submissions made on the applicant’s behalf; the second thing is that the finding of the Tribunal was entirely in the applicant’s favour; the third is that the statement by the Tribunal that the applicant may have some mental or physical disability accords with his own affidavit evidence in these proceedings where, in paragraph 9 of his affidavit, he says, in the second sentence:
As a consequence of those tortures I believe that I suffer from mental ailment.
In our submission, it is impossible to spell out of that passage in the Tribunal’s reasons any apprehension, reasonable or otherwise, that the Tribunal has pre-judged the applicant’s case. That is the main point raised in relation to the Tribunal.
HIS HONOUR: May I interrupt you for a moment?
MR GAGELER: Yes.
HIS HONOUR (through interpreter): Mr Gomez-Rios, you should take some notes about this if you want to answer it because the purpose of these proceedings is to allow you to put your case as best you can, responding to any submissions that are made for the Minister. Do you have a pen or some paper that you can note what is being said so that you can answer it? I will hand you down a pen and some paper so that you can take notes and if you want to afterwards you can give your response. If things are happening too quickly, you can indicate that and I will slow the proceedings down so that you can respond. I realise that it is not easy for you to deal with these matters without legal assistance.
Yes, sorry, Mr Gageler, proceed.
MR GAGELER: Your Honour, in relation to the decision of the Minister, what happened was this: the applicant wrote a letter to the Minister requesting that he exercise his - - -
HIS HONOUR: Let me interrupt you. Is that the only matter in respect of the decision of the Tribunal - - -
MR GAGELER: I am sorry, your Honour, I went to the main point in relation to the decision of the Tribunal. I have, in the written submissions, attempted as best I can to address other issues that may be raised in the order nisi. They are in paragraphs 20 and following of the written submissions.
HIS HONOUR: Where is ground (d) which is referred to in paragraph 23 in the draft order nisi? That is on page 3, is it?
MR GAGELER: That is on page 3, yes.
HIS HONOUR: What is the complaint of not providing reasons? There appear to be reasons provided by the Tribunal.
MR GAGELER: Indeed, yes.
HIS HONOUR: What is the complaint about the absence of reasons?
MR GAGELER: I do not understand it further, your Honour. There are clearly reasons provided. The Tribunal is, of course, under a statutory obligation to give reasons under section 430 of the Migration Act. It has given reasons. Beyond that, I do not understand the complaint made by the applicant. There is a further point perhaps not dealt with in the written submissions, your Honour. That is at page 4 of the draft order nisi. Your Honour will see e.3 and then it is followed by e.3A, and the complaint is that:
the First and Second Respondents were required –
relevantly the second respondent –
under section…..420(2)(b) of the Migration Act 1958 (Cth) to grant a ‘protection visa’ under humanitarian ground –
I perhaps have dealt with that by saying it is really covered by Eshetu, that is, that section 420(2)(b) imposes no relevantly enforceable obligation on the Tribunal in any event. But there is nothing in the Act which would ‑ ‑ ‑
HIS HONOUR: That is because it is a power conferred on the Minister separate and special, exceptional, is it?
MR GAGELER: No, I am sorry, your Honour. I am here addressing simply the position of the Tribunal to which section 420(2)(b) is addressed. But the applicant appears to have a view of that section which predates the decision of this Court in Eshetu.
HIS HONOUR: Remind me of what Eshetu says relevant to this point?
MR GAGELER: Eshetu says that section 420(2)(b) imposes no obligation on the Tribunal to act in any particular way in making its decision. It has no obligation to comply with the rules of natural justice arising from section 420(2)(b), nor does section 420(2)(b) address the way in which the Tribunal goes about making its decision. The particular passages in Eshetu are at paragraphs [49], [76], [109] and [178] to [179].
HIS HONOUR: Yes.
MR GAGELER: Your Honour, the point that I wanted to make in addition in relation to paragraph e.3A is that it is no part of the statutory criteria to be applied by the Tribunal that the Tribunal have regard to some humanitarian ground which is separate from the definition of “refugee” in the Convention. That is as much as I wish to say about the decision of the Tribunal. Can I then come to the decision of the Minister and take your Honour first to section 417 of the Migration Act.
HIS HONOUR: Yes.
MR GAGELER: Your Honour will see that section 417 is a provision which gives the Minister, in his discretion, a power to override a decision of the Refugee Review Tribunal. Subsection (1) provides that:
If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
And then subsection (2) provides that:
In exercising the power…..the Minister is not bound by –
provisions of the Act, which include section 65, the provision that says a visa may only be granted if the statutory criteria are satisfied. Subsection (7) is critical for present purposes. It provides that:
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
HIS HONOUR: Now, how does that come in? Where is that subsection?
MR GAGELER: Section 417(7). So, there is a power under subsection (1). Under subsection (2) it is relevantly unconstrained by reference to the statutory criteria governing the grant of a visa. Subsection (7) says that the Minister has no “duty to consider whether to exercise the power”.
HIS HONOUR: Has that itself been the subject of any determination by the Court? It is a curious formulation that confers a power on a public official which would ordinarily attract, or at least arguably attract, obligations to exercise the power in the way in which Parliament would be deemed to have been contemplated.
MR GAGELER: Yes.
HIS HONOUR: Julius v the Bishop of Oxford, and yet it then says in subsection (7) that the Minister does not have a duty. Does that mean that it is left as being a whim of the Minister?
MR GAGELER: No, not at all. It is a power which, under subsection (1), is expressly conferred in the national interest or in the public interest, and subsection (7) is concerned only to make clear that what Parliament has said is a discretion is truly a discretion and carries with it no duty. It is relevant to the availability of mandamus which is the relevant remedy, if any, against the Minister.
Your Honour, in our submission, need not get to that point because all that happened here was that the applicant wrote a letter to the Minister requesting an exercise of discretion under section 417 and the Minister wrote back the letter that your Honour will see at exhibit ASDON 3.
HIS HONOUR: Yes, I have seen that. So, it appears that the Minister has had the request for this special exercise of power referred to him and he has considered it.
MR GAGELER: Well, he has perhaps considered the request but what he said is that he has decided not to consider exercising the power in this case. That is, he is invoking subsection (7) that says that he has no duty to consider exercising the power in this case.
He has, contrary to what is asserted in the draft order nisi, no duty to give reasons. There is no duty under the Act; there is no duty under the Administrative Decisions (Judicial Review) Act and by virtue of Osmond, there is no duty arising under the general law.
HIS HONOUR: Where is that claim in relation to the duty to give reasons? Which paragraph of the order nisi is that?
MR GAGELER: Paragraph (b) specially, your Honour, on page 2. In paragraph (c) on page 2, your Honour will see in c.1A an allegation, apparently, that the Minister failed to accord the applicant natural justice by, in effect, failing to go back to him and tell the applicant what view he had taken of the material supplied in the letter. Now, that cannot, on any view, amount to a breach of the rules of natural justice.
HIS HONOUR: No, I am not concerned about that but you would be aware that the decision in Osmond’s Case has been the subject of quite a lot of commentary and there have been developments in the law in other jurisdictions since Osmond was decided. Is that a crucial step in your argumentation concerning paragraph (b)
MR GAGELER: Your Honour, the only point raised in paragraph ‑ ‑ ‑
HIS HONOUR: Why would it not be said that the letter that the Minister has sent is relevantly an expression of reasons here, namely, that he has decided not to consider exercising this power? If, in this case, Parliament has given the power in the terms that it has, as a wholly exceptional and additional power, presumably to be exercised in the public interest when an awful lot of fuss is made in a particular case and the Minister changes or imposes a decision which is different from that of the Tribunal.
MR GAGELER: Yes. Your Honour, I would make that submission and I would also make the additional submission that any failure to give reasons would not be a matter going to jurisdiction in any event.
Your Honours, in paragraphs 18 and 19 of the written submissions, I deal with other grounds that appear to be asserted in the draft order nisi, that is, ground (d) and ground (e). Neither appear to have any factual foundation, quite apart from their legal merit.
HIS HONOUR: Yes.
MR GAGELER: Your Honour, that completes what I wish to say orally unless there is some further assistance I can give the Court.
HIS HONOUR: Yes, thank you.
Mr Gomez-Rios, in order to succeed in your application for me to issue an order nisi returnable before a Full Court, you have to establish an arguable case, otherwise it is my duty to dismiss the application because the Full Court should not be troubled unless you have some proper basis for bringing the matter before it. The advocate for the Minister has gone through your application and has indicated the reasons why the Minister says that I should not grant you the order nisi that you seek. I realise that it is very difficult for you to respond to such detailed submissions without legal advice but now is the opportunity for you to do so if you wish to avail yourself of that opportunity. What is your answer to the various points that have been put by the advocate for the Minister? Do you have somebody in
your family or some other friend who could come forward to give you some help?
MR GOMEZ‑RIOS (through interpreter):Yes, my friend Ramon.
HIS HONOUR: There is no reason to be afraid. I am here to do justice so that if there is somebody who can help you, I will listen to them.
MR GOMEZ‑RIOS (through interpreter):Ramon Reyes, he could help me.
HIS HONOUR: Very well. Well, he can come forward. If you would like a glass of water, you take a glass of water. What is your name?
MR RAMON REYES: My name is Ramon Reyes from L’Amer-Aussies.
HIS HONOUR: And where are you from?
MR REYES: From L’Amer-Aussies. Is a multinational refugee foundation.
HIS HONOUR: You have been giving assistance to Mr Gomez-Rios?
MR REYES: Filling in the documents, yes.
HIS HONOUR: Have you heard the proceedings before the Court this morning?
MR REYES: Yes, I have.
HIS HONOUR: And do you understand the points that the Minister has made in respect of the draft order nisi suggesting that I should not return that matter before the Full Court?
MR REYES: Yes, I hear about.
HIS HONOUR: Do you wish to say anything that would be within the ambit of Mr Gomez-Rios’ interests that might assist me to come to a just decision on those submissions?
MR REYES: Well, I will feel happy to help him in saying something on his behalf. But I would like to say that I am not a solicitor, I am not a registered immigration agent. I suffer a disability as well. I am a schizophrenic person.
HIS HONOUR: I realise all that but I have an application before me and I have to either make it or refuse it and I have to do so effectively now and, therefore, I am determined, if I can, to do so justly to Mr Gomez-Rios. But we have submissions from the Minister and the Minister says that there is no legal foundation for me to grant Mr Gomez-Rios the relief that he seeks. I have asked Mr Gomez-Rios if he can give any answer and he was unable to do so, so I am now giving you a chance to say anything on his behalf that he would say if he could.
MR REYES: At the beginning, Mr Gomez-Rios asks you to proceed according to the application that he made he lodged before the High Court. He also asks you to proceed with this document and he will hand it to you today. This one. According to the application, Mr Gomez-Rios is claiming that the Minister has a duty to proceed according to section 417, according to international treaties.
HIS HONOUR: Well, the section is a somewhat curious one in the Act, the Migration Act 1958. It appears to give the Minister a power if he thinks it is in the public interest for him to do so, notwithstanding an adverse decision of the Tribunal, to make a more favourable decision concerning an applicant like Mr Gomez-Rios. But Parliament has expressly stated that in this particular case, in exercising that power, the Minister does not have a duty to consider whether to exercise the power in respect of any decision, whether the Minister is requested to do so by the applicant or by any other person. In other words, it gives the Minister the power but does not impose a duty. In this case, the Minister has said that he has considered the request that he exercise the power but he has decided not to consider exercising the power in this case. His advocate says that is all that he is required to do under this special provision of the Act of Parliament, because Parliament held back from imposing a duty on the Minister. It simply said he could do it but he does not have to.
MR REYES: Well, your Honour, we agree with that section of the Act but there are two differences in this situation. We go the word “duty” and we got, on the other side for international treaty, “obligations”. I do not know which one is more heavy than the other one and this is your privilege, your Honour is your privilege to decide which one will be….in this matter because there is a duty – no duty on the Minister to give him any favourable answer according to his application but according to international treaties, Australia has obligation to consider every document that the applicant supply to them. In this case - - -
HIS HONOUR: But there is no evidence that the Minister has not considered international treaty obligations or other relevant duties. He has simply said that he will not consider exercising his powers in this case.
There is no evidence that he failed to consider that. The Minister would, I expect, be fully aware of Australia’s international treaty obligations.
MR REYES: Well, your Honour, if that is the case I cannot continue doing anything before you. The only thing that I could say on his behalf, that if you dismiss the matter – this case – the applicant still request an injunction because he will apply under Article 38 of the United Nations Convention for Refugees to International Court of Justice.
HIS HONOUR: Well, I do not have an application for that purpose before me and I would not consider giving that relief except on process which was lodged before the Court making that application. Maybe that that application could be lodged later but I do not have that process before me now. It is enough for me to deal with the process that is here without dealing with other matters.
MR REYES: Okay, your Honour, he will pursue the case in the future.
HIS HONOUR: Is there anything else that you would wish to say? Would you have a word with Mr Gomez-Rios and see if there is anything else he would like you to say for him. I realise it is not easy for him or for you.
MR GOMEZ‑RIOS (through interpreter):I cannot stay here because I do not have anyone here and I do not have anyone over there to look after me. The only person that I have that will support me, he lives here in Australia. If I go back I have nothing in South America.
HIS HONOUR: Mr Gomez-Rios, you swore an affidavit which is a legal document setting out the facts of the case in support of your application for the order nisi which I am asked to issue. Do you ask me to read that affidavit as part of the process of the Court?
MR GOMEZ‑RIOS (through interpreter):Yes.
HIS HONOUR: Have you seen this, Mr Gageler?
MR GAGELER: Yes, your Honour.
HIS HONOUR: Do you have any objection?
MR GAGELER: No.
HIS HONOUR: Very well. I read the affidavit of Alfredo Gomez‑Rios which is sworn 12 January 2000. Is there any other evidence that you wish to place before the Court today in support of your application?
MR GOMEZ‑RIOS: Yes, the documents.
HIS HONOUR: What are these documents? Identify the documents?
MR GOMEZ‑RIOS (through interpreter):This is the provision of authorities and legislative material in support of a draft order nisi.
HIS HONOUR: Show those to Mr Gageler. Show those to the advocate for the Minister.
MR GAGELER: There is no objection, your Honour.
HIS HONOUR: Very well. Hand up those documents. I see that Mr Gomez-Rios has kept part of the bundle. Is that merely duplicating the affidavit and application for the order nisi?
MR GAGELER: As I understand it, your Honour, has been handed a copy of the same documents that I have. They are simply copies of legal authorities.
HIS HONOUR: These are legal authorities: the decision in Abebe, and a number of other court decisions.
MR GAGELER: Yes. There may be an extract from a textbook at the end of the bundle.
HIS HONOUR: I will receive all of those documents. Yes, is there any other material that you wish to place before the Court?
MR GOMEZ‑RIOS (through interpreter):No, your Honour.
HIS HONOUR: Very well. Does the Minister have any evidentiary material that he wishes to place before the Court?
MR GAGELER: No, your Honour.
HIS HONOUR: Before the Court is a request for the issue of an order nisi for constitutional writs and for other relief. The applicant is Mr Alfredo Gomez‑Rios, who has appeared before me with the assistance of an interpreter. In the course of the proceedings Mr Gomez‑Rios also received the assistance of a representative of an organisation which gives help to applicants for refugee status. The Minister for Immigration and Multicultural Affairs is the first respondent. He has appeared, without objection, to contest the issue of the order nisi. The second respondent has not appeared, but it matters not.
The facts
The applicant is a citizen of Colombia. He arrived in Australia on 11 July 1995. On 30 September 1998 he lodged with the Department of Immigration and Multicultural Affairs an application for a protection visa under the Migration Act 1958 (Cth) (“the Act”). The criteria for the grant of a protection visa include that the Minister is satisfied that the applicant is a person to whom Australia owes obligations under the Convention relating to the Status of Refugees. See sections 36 and 65 of the Act and clause 866.22 of the Migration Regulations 1994, made pursuant to the Act. On 20 November 1998 a delegate of the Minister refused to grant the applicant a protection visa under section 65 of the Act. On 18 December 1998 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) under section 412 of the Act for review of the decision to refuse him a protection visa. On 27 April 1999, pursuant to section 415(2)(a) of the Act, the Tribunal, constituted by the second respondent, affirmed the decision of the Minister not to grant the applicant a protection visa. The reasons for decision of the Tribunal show that the Tribunal accepted that the applicant had a genuine fear of persecution. However, the Tribunal found that the fear was not well founded.
On 2 June 1999 the applicant wrote to the Minister requesting that the Minister consider exercising his power under section 417 of the Act to substitute for the decision of the Tribunal a decision more favourable to the applicant. On 6 December 1999 the Minister wrote to the applicant in these terms, relevantly:
“Thank you for the letter of 2 June 1999 requesting that I consider exercising my ministerial discretion under section 417 of the Migration Act 1958.
Under this section of the Act, I may substitute for a decision of the Refugee Review Tribunal, a decision which is more favourable to the applicant if I think it is in the public interest to do so.
Your request for the exercise of my power under section 417 was referred to me. However, I have decided not to consider exercising my power in your case.”
Although the relief sought by the applicant in the draft order nisi is framed in the various ways, in substance he seeks an order nisi for mandamus requiring the Minister to consider his decision not to exercise his power under section 417 of the Act and for mandamus and prohibition arising from the alleged invalidity of the decision of the Tribunal.
In order to secure the issue of an order nisi for mandamus directed to the Minister the applicant must show an arguable case that the Minister failed to perform a duty imposed on him by law. See The Queen v War Pensions Entitlement Tribunal; Ex parte Bott (1954) 50 CLR 228 at 242. In order to obtain an order nisi for mandamus or prohibition arising from alleged invalidity of a decision of a Tribunal, the applicant must show an arguable case that the Tribunal exceeded its jurisdiction. See Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 at 183. In my opinion, the applicant fails to meet the threshold of an arguable case in either of his claims. Furthermore, in so far as the applicant by his process seeks an extension of time, under the High Court Rules Order 55 rule 30, now to challenge the decision of the Tribunal, such an extension of time should, in my view, be refused because the applicant has failed to show an arguable case.
The claims in respect of the Minister
I turn first to the claims concerning the Minister. The applicant's claims in this regard concerned the alleged failure of the Minister to exercise the power conferred on him by section 417 of the Act. Those claims fail at the threshold because the Minister is under no duty to exercise that power. Section 417(7) provides:
"The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances."
It must be assumed that this subsection was included in the Act by the Parliament, amongst other reasons, in order to relieve the Minister of the duty which would occasion applications by the constitutional process of mandamus to require the Minister to exercise a duty. Such a duty might otherwise have been read into section 417(1) which reads, relevantly:
"If the Minister thinks that it is in the public interest to do so, the Minister may substitute for the decision of the Tribunal…..another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision."
Addressing the grounds advanced by the applicant, I consider that none of them is fairly arguable. Ground (a) has no substance. It deals with considerations of the merits of the case. Having regard to the terms of section 417(7) of the Act it is not reasonably arguable that the Minister has the relevant duty which is the foundation for this argument.
Ground (b) rests on the premise that a Minister has a duty to give reasons when refusing to exercise the power under section 417 of the Act. There is no express provision in the Act imposing such a duty on the Minister. There is no duty to provide reasons in such circumstances pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth): see section 13(11)(c) of the Act and clause (d)(ii) of Schedule 2 to the Act. So far as the general law is concerned, the present law, as stated by this Court, would appear to relieve the Minister of any common law obligation in such circumstances to provide reasons for an adverse administrative decision: see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. Although that decision has been criticised, and although decisions in other jurisdictions have imposed obligations on ministers and administrative officials to give reasons, having regard to the particular provisions of the legislation concerned, this would not be a case in which to provide relief on the footing of an arguable failure to give reasons for two reasons. The first is that, having regard to the statutory scheme and the terms in which section 417(7) is expressed, no such obligation to give reasons would appear to be inherent in the Minister's exceptional power provided by that section. Secondly, so far as the exercise of that power is concerned, the letter which the Minister sent to the applicant would appear, in any event, to be a sufficient statement of the reasons for the refusal to exercise the power, given the exceptional terms in which such power is provided to the Minister.
So far as ground (c) is concerned, in so far as it applies to the Minister, it appears to assert a failure on his part to observe the rules of natural justice. I will assume that the Minister is under a duty to observe the rules of natural justice in exercising the powers conferred on him by section 417. Cf Ozmanian v Minister for Immigration, Local Government & Ethnic Affairs (1996) 137 ALR 103 at 121-122; Minister for Immigration & Ethnic Affairs v Ozmanian (1996) 71 FCR 1 at 27‑28; (1996) 141 ALR 322 at 345‑346. However, in terms of the exceptional power accorded to the Minister by the section, those rules do not, in my view, arguably oblige the Minister to revert to a person in the position of the applicant before making a final decision on an application to exercise the power given under the section.
So far as ground (d) is concerned, it asserts that the Minister "had not good reasons" (sic) for his decision because the applicant held certain legitimate expectations of the way in which the Minister would exercise his power. I will assume that the applicant had a legitimate expectation that, in exercising the power conferred on him by section 417 of the Act, the Minister would not depart from Australia's international obligations without affording the applicant an opportunity to be heard: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289‑242, 302, 305. However, in this case, having regard to the terms of the section, the Minister did not proceed to the point of exercising the discretion which is conferred upon him. He decided, in terms of the section, not to consider exercising his power. There is, in any case, no factual foundation for concluding that the Minister may have disregarded any relevant international obligation which falls upon Australia by reason of applicable international treaties. On the present materials I regard this ground, too, to be unarguable
So far as ground (e) is concerned, it asserts that the Minister failed properly to exercise his power under section 417 of the Act or exercised it by reference to an inflexible policy which, it is suggested, is contained in ministerial guidelines. Alternatively it is suggested that his decision is unreasonable in the Wednesbury sense. Once again, there is no factual foundation before the Court to support either assertion or an inference that should be drawn to such effect. Accordingly, no arguable basis for relief under ground (e) is provided. The application in respect of the Minister must therefore be rejected.
The claims in respect of the Tribunal
I turn to the claims concerning the Tribunal. Ground (c) asserts that the Tribunal was in breach of its obligation under section 420(2)(b) of the Act to "act according to substantial justice and the merits of the case". Alternatively, it is said that its decision was vitiated by substantial or apparent bias because of a finding made by the Tribunal. The finding of which the applicant complains is contained in the following passage in the Tribunal's reasons:
"Therefore, although the Tribunal has grave doubts about the credibility of the Applicant's evidence due to the significant contradictions and confusions in his evidence, the Tribunal gives the Applicant the benefit of the doubt and accepts that he has some mental or physical disability which makes it difficult for him to give a clear and consistent account of his claims. The Tribunal therefore accepts his assertion, given under oath/affirmation, that his oral evidence is true. This is because the Tribunal had the opportunity to ask the Applicant questions and to explore the contradictions and confusions, at least to some degree, directly with the Applicant himself. (emphasis added)
. As to the suggestion that from this passage an arguable inference arises that the Tribunal was affected by actual or ostensible bias, I consider that no reasonable observer would draw such an inference. I regard it as unarguable on any reasonable construction of the passage complained about. The finding which is there recorded was based on a submission made to the Tribunal by the applicant's adviser. The finding is made in a context which is favourable to the applicant. It cannot possibly, in my view, give rise to an arguable apprehension of bias on the part of the Tribunal.
As to ground (d) dealing with the reasons on the part of the Tribunal, in my view the Tribunal has given full and ample reasons as required by law. This ground is, likewise, unarguable.
As to ground (e), in so far as it applies to the Tribunal, it asserts two points. The first is that the Tribunal inflexibly applied ministerial guidelines. There is, in my view, no arguable factual foundation for any such assertion that the Tribunal applied such guidelines inflexibly or at all. The second assertion is that the Tribunal "treated less favourably" information supplied by the applicant with respect to past experiences. The relevance of past events to the existence of a well-founded fear of persecution was considered by this Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-576. Examining the reasons of the Tribunal, I do not consider that it is fairly arguable that the Tribunal demonstrated a lack of awareness of the principles which were established by that case. It has not been shown to be arguable that the Tribunal failed to give the considerations there stated the weight which, by law, belonged to them. The weight to be attached to the materials supplied by the applicant was, in any case, a matter for the Tribunal. No error which would attract the exceptional constitutional power of this Court to intervene is made out.
Order
Accordingly, the application for the order nisi is dismissed.
Do you ask for costs?
MR GAGELER: Yes, I do, your Honour.
HIS HONOUR: Mr Gomez‑Rios, the Minister has succeeded in persuading me that I should reject the order nisi and not trouble a Full Court with your application. Ordinarily, that means that you must pay the costs of the Minister. The Minister has asked for costs. Whether he will be able to get the costs out of you is another question but, ordinarily, I would make an order in his favour for costs. Is there any reason why I should not do so in your case?
MR GOMEZ-RIOS (through interpreter): Just because in this case I cannot pay. I do not have any money. I only have the help of my brother and I do not have any other help and I also do not work.
HIS HONOUR: I realise that and the Minister may not be able to get costs from you. We have a saying in English, "You can't get blood from a stone", but the law provides that where a party succeeds, that party ordinarily gets the costs. I will make an order that the Minister have an order for costs in his favour. Whether he enforces it, and whether he can get the costs, is a matter of practicality for the future.
The orders are: the application is refused, the applicant must pay the Minister's costs. There will be no costs in respect of the second respondent who did not appear.
I certify for the attendance of counsel in chambers.
Thank you for your assistance, Ms Olivares.
Call the next application.
AT 10.52 AM THE MATTER WAS CONCLUDED
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