Ordonez, Ex parte - Re Min for Immig

[2000] HCATrans 418

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B60 of 2000

In the matter of –

An application for Mandamus against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

JAIME HERNAN GOMEZ ORDONEZ

Applicant

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 14 SEPTEMBER 2000, AT 11.42 AM

Copyright in the High Court of Australia

MR S.J. HAMLYN-HARRIS:   I appear for the applicant, your Honour.  (instructed by South Brisbane Immigration & Community Legal Service Inc.)

MR R.M. DERRINGTON:  I appear for the respondent, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Hamlyn‑Harris.

MR HAMLYN-HARRIS:   Thank you, your Honour.  Your Honour, this is an application for an order nisi for a writ of mandamus directed to the respondent, the Minister for Immigration and Multicultural Affairs.  Your Honour, there is an issue of the delay in making the application because the decision of the Minister that we seek to have reviewed by means of this application was made on 24 August 1999.  But proceedings were taken in the Federal Court in relation to the matter, not specifically in relation to that decision but in relation to the actions of the departmental officers in not referring the decision to the Minister.  The decision of the Federal Court was handed down by Justice Kiefel on 2 June 2000 and then an affidavit commencing these proceedings, together with a draft order nisi, was filed on 28 June of this year.  So, your Honour, that, in brief form, is the explanation for the time that it has taken to start this application in relation to that decision last year.

Your Honour, I raise that because in the High Court Rules, Order 55 rule 30, there is reference to an application being made:

within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice.

That section refers to an application for a writ of mandamus to a judicial tribunal, which this application is not directed to.  But that, nevertheless, is the reference in the Rules to a time limitation.

HIS HONOUR:   Yes.

MR HAMLYN-HARRIS:   If it is necessary, I would ask for leave to file the material out of time.

HIS HONOUR:   Why do you not just proceed upon the basis now ‑ ‑ ‑

MR DERRINGTON:   I apologise, your Honour.  Can I assist the Court and my learned friend to say that if your Honour thought there was something in it, we could not see any reason why your Honour would not extend the time.

HIS HONOUR:   All right.  Thank you, Mr Derrington.  You proceed with the substance of the matter then, Mr Hamlyn-Harris.

MR HAMLYN-HARRIS:   Thank you, your Honour.  Your Honour, the basic facts of this case are that the applicant applied for a protection visa to the Minister for Immigration and his application was refused.  He completed a form for the refusal to be reviewed by the Refugee Review Tribunal and gave it to his solicitor in time, so that it could be filed within the 28 day time limit for that application for review.  But due to inadvertence, the solicitor did not lodge the application within the time.  So that in that way, he was deprived of the right that he normally would have had to have the matter reviewed by the Refugee Review Tribunal.

In order to, in effect, overcome this loss of the right of review, he made an application for a further – I am sorry.  He made an application to the Minister for the Minister to exercise the Minister’s power under section 48B of the Migration Act which would have the effect of allowing him to make a second application.  If I could refer your Honour to section 48B(1) of the Act.  Your Honour will see that there is a reference to section 48A which provides that a person shall, in effect, not make a second application.

HIS HONOUR:   So, the Minister has to take into account the public interest, is that right?

MR HAMLYN-HARRIS:   Yes, that is so, your Honour, yes.

HIS HONOUR:   And your point is that the matter did not even get to the Minister ‑ ‑ ‑

MR HAMLYN-HARRIS:   That is essentially the point, yes.  The difficulty that this application really has to overcome is the provisions of section 48B(6).

HIS HONOUR:   An unusual provision, is it not?

MR HAMLYN-HARRIS:   Yes.  Your Honour, it is a provision which appears in a number of different parts of the Act – or there is a provision to a very similar effect.  In my written outline, I referred your Honour to section 475 of the Act which is the section which provides that the decisions, such as a decision of the Minister under section 48B, is not reviewable by the Federal Court.  The reason I refer your Honour to that is that ‑ ‑ ‑

HIS HONOUR:   Which section is that, Mr Hamlyn‑Harris?

MR HAMLYN-HARRIS:   That is section 475, your Honour, because in section 475(1)(e) there is a convenient list of all the sections in the Act which have a provision to the same effect as section 48B(6).

HIS HONOUR:   So it is not a decision that you can take to the Federal Court?

MR HAMLYN-HARRIS:   That is so, your Honour, yes.

HIS HONOUR:   Just coming back to it, the Minister does not have a duty to consider whether to exercise the power.

MR HAMLYN-HARRIS:   No.

HIS HONOUR:   Does that necessarily involve a decision by the Minister?

MR HAMLYN-HARRIS:   That is certainly the question.

HIS HONOUR:   That is your argument, that the Minister has to decide whether he is even going to embark upon a consideration of the public interest or not, that a decision of some kind, notwithstanding subsection (6), is inescapably required.  It cannot be done by some official.

MR HAMLYN-HARRIS:   That is my submission, essentially, your Honour.

HIS HONOUR:   There is no power of delegation in relation to this section.

MR HAMLYN-HARRIS:   No, there is no power of delegation, and there is also, I do not think, any suggestion that the departmental officer who considered the matter was acting under any instrument of delegation.

HIS HONOUR:   If I were minded to give relief, what relief would I give?  I would not – what was the Tribunal’s decision then?  The Tribunal’s decision was that the application was simply – you only have one Tribunal’s decision, have you not?

MR HAMLYN-HARRIS:   Yes.

HIS HONOUR:   That the first application ‑ ‑ ‑

MR HAMLYN-HARRIS:   Could not be reviewed because the application for review was out of time.  I should say, your Honour, that there is authority from the Full Court of the Federal Court that the Tribunal does not have any jurisdiction to enlarge time.

HIS HONOUR:   Yes.  So having done that, having lost there because you were out of time, you then made an application under – what is it, section 48, is it?

MR HAMLYN-HARRIS:   Section 48B, your Honour, yes.  Your Honour, my essential submission is that the Minister has a discretion whether to consider whether to exercise the power under section 48B(1) or not and that the Minister must exercise that discretion in a proper way.

HIS HONOUR:   You gain some support, I suppose, from some of those provisions in the Act which empowers the Minister to make a delegation.  There is no delegable power here in 48B, is there?

MR HAMLYN-HARRIS:   No, that is so, your Honour, although I suppose it must be said that the only power that 48B refers to is the power to grant the – I am sorry, the power to allow a second application to be made, so that the only power the section refers to is that positive power.

HIS HONOUR:   But subsection (2) says:

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

MR HAMLYN-HARRIS:   That is right, and my submission is that the question of whether the Minister will, or will not, consider exercising his power to allow a second application must be made by the Minister.

HIS HONOUR:   All right.  I will give you a further opportunity, but Mr Derrington, bearing in mind that I do not finally decide this case at this stage, unless I am minded to dismiss it, can you assist me on subsection (6)?

MR DERRINGTON:   Yes, of course, your Honour.  If I might start by identifying that in subsection (1) the power of the Minister is to effectively grant an indulgence to an applicant to make a second application for a protection visa.  So that is his power.

HIS HONOUR:   How can he ever exercise the power unless he knows that somebody is inviting him to exercise it?  I am right on the facts, am I not, on the material, it got to an official and did not get beyond an official?

MR DERRINGTON:   No, that is right, but the way my learned friend put it to your Honour of what he sought, mandamus to compel the Minister to consider, is exactly what subsection (6) prevents.  It says he has no duty in any circumstance to consider exercising his power.  If your Honour were to examine it by identifying the power, it would be in the power to exercise a discretion to grant a second application.  In normal circumstances, were a person – or were circumstances to arise where he should, as a matter of law, consider exercising that power, he would be bound to do so.

HIS HONOUR:   Mr Derrington, we will come to the legal argument in a moment, but it seems to me to be extraordinary that the Minister has a power, and it is a power that is reposed expressly in the Minister, but he never knows whether circumstances have arisen in which he may even exercise the power.  How can he exercise the power unless he knows about an occasion for its exercise?

MR DERRINGTON:   He does exercise it in this way, your Honour, and it was determined ‑ ‑ ‑

HIS HONOUR:   By telling his officials that I do not want to entertain any of these at all.

MR DERRINGTON:   On the contrary, by telling his officials that there are cases where he will consider exercising his power.  That is what the Full Court of the Federal Court regarded the ministerial guidelines to be, that they are a determination in advance by the Minister that if applications of this nature were to come before them, then they should refer them to him because he will, in those circumstances, exercise his discretion to consider exercising his power.  That is the way they put it.

Now, the way my learned friend puts his case is to turn that determination by a Minister in one or other cases to exercise his discretion into an obligation to exercise his discretion in his case.  This question has been dealt with directly ‑ ‑ ‑

HIS HONOUR:   But not by us in the High Court.

MR DERRINGTON:    ‑ ‑ ‑by Justice Kirby ‑ ‑ ‑

HIS HONOUR:   Did Justice Kirby deal with it?

MR DERRINGTON:   Sorry, I have to explain, your Honour – by his Honour Justice Kirby considering the identical power in section 417 of the Act, which I have a copy of for your Honour.  As my learned friend correctly pointed out, this type of provision appears throughout the Act and, your Honour, to put them in context – I have just obtained a couple of

sections, 48B, 417, and 91L – but they are all sections where this type of provision occurs and the rationale for them is, your Honour, that they are not used in the ordinary day to day business of the department or the Minister because they come at the end of the procedure where something else, some special public interest circumstances, arise.  That is to say, they are not, if you like, primary powers ‑ ‑ ‑

HIS HONOUR:   But you can understand why an over‑burdened Minister might need something like this.  He may be inundated by applications which simply would not be within his – it is not physically or mentally possible to deal with them all.

MR DERRINGTON:   Indeed.  In every case ‑ ‑ ‑

HIS HONOUR:   Which case did Justice Kirby hear?

MR DERRINGTON:   Your Honour, my friend has handed up to you a bundle of cases and there is a decision of Gomez-Rios and it is a transcript of an application seeking mandamus against the Minister in relation to the exercise of his power under section 417, I think it was, of the Act, the identical power – yes, it was 417 of the Act.

HIS HONOUR:   Gomez-Rios, is it?

MR DERRINGTON:   Yes, it is, and your Honour, at page 13 of the transcript you will see his Honour begins his decision.  His Honour sets out the fact and, most importantly at page 15 his Honour identifies why mandamus cannot run against a power of this nature, that simply being because mandamus compels the performance of a duty and there is no duty.  I would adopt what his Honour said in the paragraphs under the heading, “The claims in respect of the Minister”, and in particular the first paragraph.  My submission is they fail at the threshold because what my learned friend, although it has not been articulated, really seeks to ask your Honour to do is grant an order nisi compelling the Minister, not to consider the exercise of his power, because really to do so that would be contrary to the Act, but to consider considering exercising his power.  That is not something that the Court would do because it is not compelling the performance of a duty or the exercise of a power.  The Minister has no duty.

HIS HONOUR:   All right.  I interrupted Mr Hamlyn‑Harris.

MR DERRINGTON:   Sorry, yes, but your Honour has the thrust of – thank you, your Honour.

MR HAMLYN-HARRIS:   Your Honour, could I take that point up.  Firstly, your Honour, a draft order nisi has been filed but it does not correctly state what – it does not correctly reflect my submissions.  If I could refer your Honour to the draft order.  In fact there have been two filed, but the one that I wanted to refer your Honour to is the one that has “Draft Order Nisi” on it.

HIS HONOUR:   What relief do you want?

MR HAMLYN-HARRIS:   The relief I seek is an order that the respondent show cause why mandamus should not be issued, compelling the respondent to exercise his discretion as to whether he would consider exercising his power under section 48B.  So it is the discretion as to whether or not he will consider exercising his power that I seek an order in relation to.  In my submission, when one goes to the decision of Justice Kirby in Gomez-Rios, what the applicant there sought to do, in effect, was to have the decision of the Minister reviewed on the merits of his case.  It was a case where the Minister had decided not to consider exercising the power.  In my submission, what his Honour Justice Kirby says on page 15 is not something that I seek to take issue with.  His Honour makes the point that the decision by the Minister not to consider exercising his power is not reviewable.  That is what section 48B(6) says, but my point is that the Minister, in the case of the present applicant, has not properly exercised his discretion as to whether he would or would not give consideration to exercising the power.

HIS HONOUR:   Let us have a look at the words of 48B(1).  It does refer to “a particular non‑citizen”, which rather suggests that ‑ ‑ ‑

MR HAMLYN-HARRIS:   The applicant in this case falls within the category of non-citizen referred to. 

HIS HONOUR:   Yes.

MR HAMLYN-HARRIS:   Could I refer your Honour to a transcript of a hearing in the Full Court of this Court on Wednesday of last week in the matter of The Minister for Immigration v Miah.  It is a fairly bulky document which is amongst the material which your Honour has been supplied with.  Your Honour, there is a similarity between that case and this case in that a solicitor, as in this case, had failed to lodge the applicant’s application under section 48B within the right time and, as in this case, he had lost his right to a review by the Refugee Review Tribunal.  The difference, though, is that in that case the fact that the solicitor had failed to ‑ ‑ ‑

HIS HONOUR:   I am not sure that I have that.  Which case is that?

MR HAMLYN-HARRIS:   It is called An application against the Minister for Immigration and Multicultural Affairs, Ex parte Miah – it is a long name but the surname is Miah.

HIS HONOUR:   Ataul Haque Miah, yes. I have that.

MR HAMLYN-HARRIS:   As I say, your Honour, the solicitor had failed to lodge the form.  But when the application, as in this case, was made under section 48B to be allowed to make a second application, the fact that the solicitor was at fault was not disclosed, so that the matter which was aired before the Full Court did not really concern the same issue which is raised by the present application.  What in fact, though, was sought to be argued there is something which is explained at the bottom of page 4 and over to the top of page 5 of the transcript.  It was really a situation where there was a long delay between the application – rather, the request under section 48B and the decision made, as in this case, by a departmental officer not to refer it to the Minister.  In that intervening period, there had been a change of circumstances in Bangladesh where the applicant, in that case, had come from and so the issue before the Full Court was whether there was a requirement on the Minister of exercising natural justice before a decision was made to refuse the application under section 48B, natural justice by informing the applicant of the change of circumstances which were going to be taken into account.

So that was really the issue before the High Court, although the issue of the solicitor’s failure to lodge the form was canvassed, but only in relation to the question of whether the High Court should exercise its discretion not to grant the relief sought, so it was concerned with the Court’s discretion.  That appears on page 49 of the transcript in the course of the submissions by the applicant’s counsel, Mr Basten.  I think the point there was that the availability of other relief is a relevant consideration to whether or not mandamus should be granted, once the grounds are established.

The passage that I particularly wanted to refer your Honour to is towards the end.  Starting on page 83, your Honour will see just before line 3720, the Minister’s counsel, Mr, Roberts, said:

if I could just say something very quickly about discretion –

in other words, about the Court’s discretion, and he went on to point out that the solicitor’s failure to lodge the form had not been disclosed in his application and had only been disclosed in the application to the High Court.  I only mention that, your Honour, because it was only in relation to the discretion of the Court that the matter arose.  At the bottom of page 84 his Honour Justice McHugh raised a matter.  His Honour said:

Can I put a matter to you that I would like you to deal with as a ground why we should positively exercise a discretion and that is because he applied for the Minister to exercise his discretion under 48B of the Act and it was refused and the reasons are set out at page 104.  It was never even put to the Minister because his:

“case did not meet these Guidelines, and will not be referred to the Minister for consideration under s 48B.”

That is precisely the situation here.

HIS HONOUR:   Justice McHugh had the same instinctive sort of reaction as I had.

MR HAMLYN-HARRIS:   Yes.  Of course his Honour has not made a ruling, he has just ‑ ‑ ‑ 

HIS HONOUR:   Was Justice Kirby’s decision referred to in this case?

MR HAMLYN-HARRIS:   I do not believe so, your Honour.

HIS HONOUR:   It has only very recently been argued.  Justice Kirby’s decision would have been before that, would it not?

MR HAMLYN-HARRIS:   It was, yes, your Honour.

HIS HONOUR:   Justice Kirby does not say anything relevantly irrelevant to this topic?

MR HAMLYN-HARRIS:   No.  Could I refer your Honour to the next paragraph where Justice McHugh said:

I thought that guidelines could be used but they could never be taken to fetter a discretion, that the repository of power always had a residual discretion.  This seems to have accepted that the guidelines spent the content of the power.  Now, it seems to me at the moment arguable that he has never had his case properly considered.

Then it was pointed out, your Honour, that section 48B(6) said that the Minister did not have a duty to consider it, that is in the middle of the page, but his Honour Justice McHugh made the point, at about line 3830, that “it did not even get to the Minister”.

My essential submission is that it is arguable that in the present case the applicant has not had his request properly considered and it is arguable

that the Minister has not properly considered, according to law, his discretion as to whether or not he would consider relief.

HIS HONOUR:   But if the legislature intended that the Minister’s discretion in any way be fettered by guidelines then the legislation would have so provided, I suppose that is your argument?

MR HAMLYN-HARRIS:   Well, yes, I would respectfully adopt that argument.  Could I also make the point that on one view of it, if one reads section 48B(6) to mean that under no circumstances can any decision of the Minister under section 48 be reviewed, then it would mean that if the Minister, for example, made a blanket decision that he would not ever consider any requests, that it would not be reviewable.  Also, I make the point that in the case of Miah, which is being considered by the Full Court on a different point, the Court is considering the question of reviewing, by way of mandamus, the actions of the Minister under that section.  Those are my submissions, your Honour.

HIS HONOUR:   Thank you.  Mr Derrington, I suppose no statutory provision at all can ever exclude the issue of prerogative relief under Chapter III?

MR DERRINGTON: That is undoubtedly the case. Undoubtedly the case, because it would contravene the Constitution.

HIS HONOUR:   I suppose what Mr Hamlyn-Harris’ argument comes down to is whether, notwithstanding subsection (6), the Minister in exercising the executive power has to exercise it in accordance with the statute.

MR DERRINGTON:   Your Honour is perfectly right to identify the statute as the source of the Minister’s power, and I did not perceive there to be a constitutional issue because the power is a statutory ‑ mere power is the way I refer to it in my submissions –and a novel concept; it is perhaps not entirely novel, but the point is simply this:  it is a power granted by the legislature to the Minister which the legislature says, and there is no duty on you to exercise the power or to consider exercising the power.  So it is a mere power, so to speak, in drawing the analogy from equity.

HIS HONOUR:   What about if the guidelines were so wide that nothing could ever, as a practical matter, get to the Minister?

MR DERRINGTON:   Then those guidelines would be in accordance with the power reposed in the Minister by the legislature to say, you have no duty to consider exercising this power and if the Minister says, well I chose not to exercise the power ever in my time as Minister, then I will not and here I have no duty to even consider exercising it, so I am doing exactly what the legislature has granted me in clear and unequivocal terms an opportunity to do so.  It is noted that at the end of subsection (6) it says in any circumstances.  He has no duty, effectively it says no duty as a Minister in any circumstances, so the Minister has no duty in any circumstances to consider exercising the power. 

And it is referred to by his Honour Justice Kirby as an exceptional power, and I would make that submission too, and in the scheme of the Act they are all exceptional powers because they come at the end of the ordinary process through the Act.  So they are exceptional powers and within that the power is a power to grant an indulgence or a second opportunity or a more favourable decision or something of that nature.

Now, by adding on that there is no obligation to consider exercising the power, the legislature has foreseen that were it not to say that, the circumstances would arise by the making of applications for the Minister to consider the exercise of his power.  By saying that the Minister is not duty bound to consider in any circumstances the exercise of his power is to say that no matter what circumstances arise, being the making of an application or otherwise, the Minister has no duty at all in relation to consider whether he should exercise the power.  The way in which the submissions propounded by my learned friend undermine that is to say, well, that may be, but in every case the Minister must consider considering exercising his power, and that really cannot be right.  I mean, in terms of the prerogative risk the answer is quite clear, that never before have the court purported to compel the executive, or any member of the executive, not to exercise a power, duty or authority, but to do something less than that, to compel them to consider considering something.

HIS HONOUR:   Sometimes powers are read as obligations.

MR DERRINGTON:   Indeed they are, that is identified in my submissions, the authorities would say that, but it could not be more clear to say this is ‑ ‑ ‑

HIS HONOUR:   There is no doubt the legislature is trying to avoid mandamus or avoid situations in which ‑ ‑ ‑

MR DERRINGTON:   The Minister would be compelled ‑ ‑ ‑

HIS HONOUR:   - - -compelled by mandamus or mandatory injunction.

MR DERRINGTON:   And the granting of mandamus would simply undermine section 7 completely because, on every case, the Minister would have to consider the application.  One could imagine then what the

arguments would be if mandamus did compel the Minister to consider considering exercising his power.  He would have to look at the merits of the case and consider in each case the relevant facts and all the administrative obligations would follow.

HIS HONOUR:   Where do I find the guidelines?  Are the guidelines in the material?

MR DERRINGTON:   Yes, they are, your Honour; they are at exhibit 2, Ms Morag McDonald’s affidavit and they are MLM4.

HIS HONOUR:   Which is the one that applies to this?

MR DERRINGTON:   Well, none of them apply to this, because there are no provisions for the department to forward to the Minister a request for the exercise of the power simply because of the time missed for seeking revue.

HIS HONOUR:   I should have asked you, where are the ones which would effectively require an official to refer it to a Minister?  Changed conditions in the country of origin.

MR DERRINGTON:   Yes.  Firstly in relation to refugees who pass ….. are dealt with; it is under that heading, I think, at page 2, then Changed Conditions in the Country of Origin or Changed Conditions in Australia.  Other circumstances, just reading from the headings are ‑ ‑ ‑

HIS HONOUR:   Did not Mr Hamlyn-Harris’ client try to point to some changed circumstances?

MR DERRINGTON:   Not that I understood.

HIS HONOUR:   No, he did not, no.  Is that ‑ ‑ ‑

MR HAMLYN-HARRIS:   I think he did, your Honour.  Yes, he attempted to do that, but he also sought to rely on the failure of the solicitor to lodge the form.

HIS HONOUR:   But did your client point to any changed circumstances in Colombo?

MR HAMLYN-HARRIS:   Yes, your Honour.  If I could refer your Honour to his application, which is exhibit ‑ ‑ ‑

HIS HONOUR:   Is that of Ms McDonald’s ‑ ‑ ‑

MR HAMLYN-HARRIS:   Yes, it is exhibit MLM2 to the affidavit of Ms McDonald.

HIS HONOUR:   New Country Information, is it?  There has been an escalation of violence towards human rights ‑ ‑ ‑

MR HAMLYN-HARRIS:   Yes, that is where he endeavours to put forward material which could be called changed circumstances.

HIS HONOUR:   Where is the response of the official?

MR HAMLYN-HARRIS:   It is MLM3, your Honour.

HIS HONOUR:   Yes, thank you.  Sorry, Mr Derrington – I just wanted to find ‑ ‑ ‑

MR DERRINGTON:   Of course, your Honour, and that very issue your Honour was ventilated before her Honour Justice Kiefel in the Federal Court, where her Honour took a task of identifying whether or not the delegate had properly assessed the application against the guidelines, and her Honour dealt with that.

HIS HONOUR:   Well, what did her Honour say about that?

MR DERRINGTON:   Her Honour said at page 7 of her reasons:

The case manager here was directed by the guidelines to consider the reason for the provision of the additional material and whether it enhanced the applicant’s chances of a successful claim –

And that is exactly what they did, and obviously, that is not the case.  But, of course, your Honour must remember this is not an application seeking mandamus or certiorari or prohibition against ‑ ‑ ‑

HIS HONOUR:   Against that officer – I accept that.  It may be a relevant consideration that there is, in fact – it may be relevant to a construction of the Act in case of ambiguity that an official amenable to constitutional writ has not taken into account a relevant matter, I do not know.

MR DERRINGTON:   Quite, but there is no ‑ ‑ ‑

HIS HONOUR:   But that is not the claim here.

MR DERRINGTON:   No, and there is no suggestion or no ‑ ‑ ‑

HIS HONOUR:   Do you say that it would be possible to get a constitutional writ against an official if he acted totally unreasonably, for example, in applying the guidelines?

MR DERRINGTON:   If the official is acting in the capacity of exercising a power or authority or discretion, yes, but not otherwise, and, almost pointedly, that identifies why mandamus will not issue to compel a consideration to consider, because the “consider” is not a power or authority which he must perform.

HIS HONOUR:   What about Justice McHugh’s interpolation?  One has got to be very careful how one deals with propositions that are merely put in argument.

MR DERRINGTON:   Indeed, your Honour, that was my first submission, that it was not something that was directly before the Court.

HIS HONOUR:   His Honour may well have just been testing the submission.

MR DERRINGTON:   Indeed, and certainly his Honour does not appear, from the transcript, was referred to Beddington, where the Full Court carefully identified what the guidelines do:  they set out in advance the Minister’s determination of the applications he will consider and as my submission before is, had that been pointed out to his Honour, his Honour would then have said, well, so the point would be that it is turned around and now said, because I will consider these, that is a rejection in advance of mine.  I am sorry, I will start again.  The applicant wants to say, because the Minister says he will consider these types of application, it is a determination, or something, of a rejection of my application.  Now, that he cannot do, because he is fettering his discretion, but, of course, he is not fettering his discretion because he has no duty to consider the exercise of the power, and that lies at the heart of it, that he has no duty to consider exercising his power.

HIS HONOUR:   Mr Derrington, I understand that submission, and this is not quite the case, I know, but Mr Hamlyn-Harris’ client seems to have raised a point – whether it is a valid point or not, is another question – about changed circumstances.  It does not appear that the official has taken that into account, does it?  I mean, it may not be an answer to what you are putting to me, it probably is not, but I am just interested in that for the moment.

MR DERRINGTON:   Your Honour is perfectly right.  It may have been an answer in the right place at the right time before the Federal Court, but it does not affect what the Minister did in relation to this application, ie, he did not consider the exercise of discretion, in a sense.  He did exactly what the legislature provided, he did not consider it, because he is not obliged to.  He did not consider exercising his power in respect to it, because he is not obliged to.  But your Honour is right about the new fact, but that is something which would then be the subject of issues and debate.

HIS HONOUR:   Well he says, “However your case did not meet these guidelines”.  Why did it not meet the guideline 10.1:  changed conditions in the country of origin?  Why did it not meet that guideline?  It might have been, perhaps, the official might have said, well I have looked at that and I am not satisfied that this is a significant change, but the letter does not say that.

MR DERRINGTON:   No, exactly right.  The letter does not say that because the letter did not have to because the delegate did not have any power or authority to grant a discretion, only the Minister.

HIS HONOUR:   Why did he not say to the Minister, “This might be within the guideline that you have issued because there is an assertion of changed country, changed conditions within 10.1 of the guidelines.

MR DERRINGTON:   It was, with respect, your Honour, simply assessed according to that by the case manager and ‑ ‑ ‑

HIS HONOUR:   Where is the evidence that the case manager had any regard at all to the assertion of changed conditions?

MR DERRINGTON:   There is none, your Honour, because this is not an application attacking the decision of the case manager.

HIS HONOUR:   No, I know that.  Let me assume for present purposes that it were.  Let us assume that that is what it is.

MR DERRINGTON:   Yes.

HIS HONOUR:   It highlights the difficulty, in a sense, does it not, that you might have officials just not applying the guideline.  I must say it seems to me that perhaps the guideline was not properly applied.  It is probably is not an answer to your argument, Mr Derrington, but I am just interested in that situation.  Do you say that the case manager did apply the guideline?  You do not know, I suppose.

MR DERRINGTON:   Well, I do not know.  I cannot point, your Honour, because it is not ‑ ‑ ‑

HIS HONOUR:   There is no reason to suppose that the case manager did because I cannot see for the moment why the allegation of changed circumstances did not fall within 10.1.

MR DERRINGTON:   The point is that, of course, delegates and members of the department have before them vast amounts of information about activities in various parts of the world, wars, political situations and we are not privy to those considerations.  Now, the reason we are not – it comes back to the reason why we are not privy because it is an exceptional power which the Minister may or may not exercise and he has no duty to consider whether he should exercise it or not.  So, it is not a question of assessing the application and the merits of the application, it is assessing whether or not the Minister is duty bound to consider it, and that is all it is.  With the greatest to my friend’s argument, it is a backdoor way of seeking to say, “The Minister must consider it, regardless of express terms of subsection (7)”.

I can understand your Honour’s concern because it is a power of an exceptional nature and has been identified as such but it nevertheless comes back to a question ‑ ‑ ‑

HIS HONOUR:   My concern, and it is not really an answer to the legal argument, I suppose, but my concern is that whilst one would not quibble in any way at all, perhaps, as a matter of efficient executive practice, perhaps necessary executive practice, that the Minister lay down comprehensive guidelines in advance, but here I am concerned that there may be a question whether, and it may not arise on the papers, but I am concerned that there may be a question whether the case manager applied those guidelines properly, or at all, and whether in some way that may be a ground for relief.

MR DERRINGTON:   Yes.  Well, your Honour’s concern is obviously appropriate but my submission is that its answer lies in a clear identification of what ‑ ‑ ‑

HIS HONOUR:   What the relief sought is and against whom it is sought and what the language of the Act says about that particular person against whom it is sought.

MR DERRINGTON:   Indeed, and they all involve what the departmental officer is doing, the case manager is doing.  He is applying the Minister’s predetermination, if you like, of which matters he will consider.

HIS HONOUR:   Yes.

MR DERRINGTON:   And, because the Minister is not duty bound by the legislation to actually consider it, nor would this Court say, “Well, we will bind you to consider whether you should consider it.”, because to do so would simply be to underline that part of the legislation.  So, the answer is what the members of the department who assess these applications do is not exercise a power under an enactment at all, because there is no power being exercised, no duty being performed or not performed, it is considering whether to consider exercising a power under an enactment and that is not the exercise of a power.

With respect, your Honour, that is a complete answer to it because the administrative obligations arise in relation to exercise of power and the prerogative writs, and particularly mandamus, to enforce exercise of a power or duty and the order sought here is not in connection with that.  I am sorry, your Honour, it was rightly pointed out to me that the letter of the department indicates that the application was assessed against the Minister’s guidelines.  Now, whether the processes were right or wrong is not shown but it is certainly ‑ ‑ ‑

HIS HONOUR:   It looks like a pro forma letter, though, does it not?

MR DERRINGTON:   I would not suggest that it was not, your Honour, but, with respect, that is the only evidence that is available to your Honour, that it was assessed against the guidelines, and because this issue is not an issue that is otherwise raised or in contention ‑ ‑ ‑

HIS HONOUR:   I think that is your better point on the letter, because I do not frankly see how it can possibly be said that it has been assessed against the guidelines.  I mean, there is a definite claim and I suppose the applicant’s own assertions to support it of changed conditions.  I suppose the official might say, “Well, I do not regard that as changed conditions, having regard to what I know about what the previous conditions were”, that may be a possibility”.

MR DERRINGTON:   That is correct.  What they would have to do is assess ‑ reach an assessment identified in the guidelines that – and that is what the guidelines do, they instruct the departmental officials to consider what is put to them and reach a conclusion as to whether or not they fall within the categories of cases as the Minister has identified.

HIS HONOUR:   Yes.

MR DERRINGTON:   With respect, your Honour, perhaps, apart from the legal point the other – I am sorry, I should mention that Justice Hayne tangentially considered this matter of section 48B in Ex parte Farah.  It was raised in argument before his Honour and his Honour dealt with it very quickly.  He decided he ‑ ‑ ‑

HIS HONOUR:   What did his Honour say?

MR DERRINGTON:   His Honour simply said there was no arguable case made out in relation to the challenge of the Minister under section 48B or section 417, they being very similar provisions.  That was in a case where it was put to the Minister that the application was made and it was considered but – I should say to the contrary it was put that because the Minister has this extraordinarily wide power he did not have to consider it at all.  The decision is not much help, it simply identifies a case where the point was raised.

HIS HONOUR:   Where it was touched upon.

MR DERRINGTON:   His Honour Justice Kirby’s decision, because it is so directly analogous, is obviously of far more weight.  The last point which I wished to address your Honour on was simply that at the end of the day the question about granting mandamus may fall down to whether or not there is any utility in directing mandamus against the Minister because all that can be said is the Minister must consider - as my learned friend now puts it in a draft order nisi which we have yet to see – he must consider the exercise of ‑ ‑ ‑

HIS HONOUR:   I would not regard that as a matter of no substance, if we reach that point.  It might be very, very important because there is no reason to suppose that the Minister would have any preconceived view about the public interest, which is the relevant matter under 48B(1).

MR DERRINGTON:   And the thrust of the application is that their legal advisers overlooked the time periods, or did not act quickly enough, and, with respect, your Honour, that will never amount to a matter of public interest.  Were it to be so – well, for a start, it is not, it is a matter of private interest, it is not a public interest and it is a matter which would be agitated in every case where an application was not put within time.  That is not to say floodgates arguments are at all appealing to the Court but it is simply to identify that it is not a matter of public interest, it is simply a matter of private rights between a client and a solicitor.

HIS HONOUR:   Well, it might be a matter of public interest that a person who has a very genuine claim, in a case in which there is a very genuine claim at least have an opportunity to put it before the Minister.  I mean, that may be a matter of public interest.

MR DERRINGTON:   Well, it would be a matter of public interest were it not for the fact that the legislation does not compel the Minister at all even to consider that ‑ ‑ ‑

HIS HONOUR:   Well, I think efficient public administration is certainly a matter of public interest and the way in which executive administration is carried out.

MR DERRINGTON:   I am sorry, your Honour, we are perhaps at cross‑purposes.  I agree entirely, but the public interest that was ‑ ‑ ‑

HIS HONOUR:   The fact that the application was out of time is because of the solicitor’s fault is not the only matter which may have to be taken into account in deciding whether there is a public interest, in deciding whether to apply 48A against an applicant or not, that is all I am saying.

MR DERRINGTON:   Yes.  With respect, your Honour, not allow 48A to run itself rather than give the  indulgence.

HIS HONOUR:   Yes, quite.  All right.

MR DERRINGTON:   I am not sure that there is any other point with which I can assist the Court, unless there is something in particular?

HIS HONOUR:   No, thank you, Mr Derrington.  Yes, Mr Hamlyn-Harris.

MR HAMLYN-HARRIS:   Thank you, your Honour.  Just on the last point, in my submission, if the request got to the Minister it is possible that the Minister might consider that it would be in the public interest that a person in the position of the applicant who went to an organisation, publicly funded, to assist people in his situation in making these applications to the Refugee Review Tribunal was prevented from in fact going to the Tribunal because of a mistake by the organisation, so that in my submission the question of public interest is a matter for the Minister, that if the request got to him he might determine that issue in the applicant’s favour.

In my submission, there is no indication that his application was properly assessed against the guidelines.  This application does not challenge the proper application and assessment ‑ ‑ ‑

HIS HONOUR:   It does not challenge the guidelines.  It is within 10.1, you say, do you not?

MR HAMLYN-HARRIS:   Yes, in respect of that aspect of his application, but the point I wanted to make is that this application before the Court does not challenge the proper use and the proper application of the guidelines in circumstances which the guidelines are designed to meet, but the other point which the applicant has raised is the point about the solicitor’s failure to lodge the form and the guidelines will not allow that to be considered, so that if the guidelines were applied, that can never get to

the Minister.  So, in my submission, that really comes down a question of whether the Minister, in saying that the guidelines have to be applied, has properly exercised his discretion as to whether or not he will give any consideration to the request.

Just briefly your Honour, in relation to the case of Gomez‑Rios, the decision of his Honour Justice Kirby, it appears on page 8, in the course of the submissions from what was said by the Minister’s counsel, that the Minister 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 he has no duty to consider exercising the power in this case.  It is not possible from the transcript to tell how the request was considered but, in my submission, what Justice Kirby has decided, as appears on page 15, is that, in an appropriate case, the Minister can determine that he will not consider the power and that will not be reviewable.  That is not the issue which is raised by this application.  This application raises the issue of in effect the Minister improperly fettering his discretion so that this particular matter could not go to him.

The only other final matters that I would wish to draw to your Honour’s attention is that, in section 48B(6) it refers to the Minister not having a duty to consider whether to exercise the power, but it goes on, the last part of the subsection is “whether he or she is requested to do so by the non-citizen”, and so on.  So, in my submission, the subsection contemplates that the Minister will receive a request. 

The only other matter, your Honour, is in section 475, which is the section limiting the powers of the Federal Court to review certain decisions.  I may have made this point before, your Honour, but in section 475(1)(e) reference is made to a decision of the Minister not to exercise, or not to consider the exercise of his or her power.  So that the Act really recognises that some form, at least, of a decision has to be made by the Minister, or may be made by the Minister, at least in some cases, not to consider the exercise of the power.  It is not something that can simply be left by default.

HIS HONOUR:   Well that has been done, Mr Derrington says, by the guidelines; it has just been done in advance, that the Minister has considered the exercise of power in relation to certain types of incidents or events or circumstances.

MR DERRINGTON:   Yes, that is right.  Certainly that is what the Minister has purported to do and the essential point made on behalf of the applicant is, though, that it is not lawful for him to do it in such a way that certain matters which might have merit cannot even be received by him.  Thank you, your Honour.

HIS HONOUR:   I want to think about this matter.  I am going to reserve my decision on it.

MR DERRINGTON:   Thank you, your Honour.

AT 12.43 PM THE MATTER WAS ADJOURNED