Plaintiff M47/2012 v Director General of Security and Ors

[2012] HCATrans 307

Replacement Transcript

[2012] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M47 of 2012

B e t w e e n -

PLAINTIFF M47/2012

Plaintiff

and

DIRECTOR GENERAL OF SECURITY

First Defendant

THE OFFICER IN CHARGE, MELBOURNE IMMIGRATION TRANSIT ACCOMMODATION

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Fourth Defendant

COMMONWEALTH OF AUSTRALIA

Fifth Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 29 NOVEMBER 2012, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR R.M. NIALL, SC:   May it please, your Honour, I appear with my learned friend, MS K.L. WALKER, for the plaintiff.  (instructed by Allens Lawyers)

MR S.P. DONAGHUE, SC:   May it please the Court, I appear with my learned friend, MR C.J. HORAN, on behalf of all defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Niall.

MR NIALL:   If your Honour pleases, on Wednesday we filed with the Court a short submission on final orders following the answers to the questions given by the Full Court and attached ‑ ‑ ‑

HIS HONOUR:   Yes.  I have, of course, read that.

MR NIALL:   Attached to it, your Honour will have seen the orders that we seek.

HIS HONOUR:   Yes.

MR NIALL:   The area that separates the parties is in paragraph 5 of those orders.

HIS HONOUR:   Yes.

MR NIALL:   For the reasons we set out in our submission, in the ordinary course and in this course, there remains a valid application before the tribunal which can be determined in the usual way.  I do not propose to say much more about the point other than ‑ ‑ ‑

HIS HONOUR:   Can I, with that in mind, direct your attention to section 415 of the Act, in particular 415(2)(c), and the regulations that deal with what are prescribed matters?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   First, is it plain that if this matter were to go back to the tribunal the relevant prescription of matters would be found in the regulations as they stand today?  Can I sort of clear away the time issue first?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   It seems to me that at least a very possible point of view is that if it were to go back to the tribunal the tribunal would be again exercising its powers, it would be exercising its powers according to law as they stood at that time, therefore it would be the regulations as they stand today.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Now, it seems to me – I may be quite wrong – at regulation 4.33, which you may not have available to you, I suspect ‑ ‑ ‑

MR NIALL:   I am embarrassed to say I do not, your Honour.

HIS HONOUR:   We might see if we can print a couple of copies because I think this might be a matter of some interest.  We will get a couple of copies, but can I go on in the meantime?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Subregulation (1) says that:

For the purposes of paragraph 415(2)(c) of the Act, an application for a Protection (Class XA) visa is prescribed.

Is that the relevant class of visa with which we are concerned, Protection (Class XA)?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   I thought it was, but I need to tick all this off.  Subregulations (3) and (4) then identify what are permissible directions that the RRT can give under 415(2)(c), and relevantly also identify what are not permissible directions.  One class of direction that is not a permissible direction specified in regulation 4.33(3)(b) is that:

it is not a permissible direction that the applicant satisfies a matter specified in Article 1F, 32 or 33(2) of the Convention.

Subregulation (4)(c) says:

it is not a permissible direction that the applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:

(i)the applicant is a danger to Australia’s security; or

matters which I think are not immediately relevant.  Can I shortcut to where it seems to me all this seems to take us?  If it were remitted to the RRT and if mandamus were to issue to the RRT to determine the undetermined application according to law would it be within the power of the RRT – I interpolate it seems to me that it is – to remit the matter for reconsideration in accordance with directions or recommendations of the tribunal as are permitted by the regulations, which is to say to remit it to the Minister or Minister’s delegate, say we find on the hypothesis you would have us work on we, the tribunal, find this man satisfies the protection obligations element, we cannot direct you – see regulation 4.33 – and we do not direct you about how the security issues are to be resolved, those are matters for you, the Minister, to determine, and if you, the Minister, determine them one way it will enliven the AAT review, if the Minister determines the other way there is nothing to review.  Now, is that not an outcome that is available?  Please to answer in not more than three hours, writing your name at the head of each sheet of paper, you may commence writing now.

MR NIALL:   Yes, it would be an outcome that the tribunal could arrive at.

HIS HONOUR:   Would it not be appropriate that on review by the tribunal it be open to the Minister to submit to the tribunal that that course should be taken, and would it not be appropriate for that to be a decision committed to the tribunal rather than me pre‑empting it one way or the other?  It simply goes back to the tribunal for hearing and determination according to law, but the hearing and determination according to law is a hearing and determination in which one of the available outcomes specified in 415(2)(c) is, if persuaded by the Minister, to remit the matter to the Minister for consideration of the security issues accompanied by whatever direction the tribunal gives about satisfaction of protection obligations.  Presumably there would be no remitter if the tribunal were not satisfied of the protection obligations aspect.

MR NIALL:   Yes.

HIS HONOUR:   So the hypothesis for consideration is you win in the tribunal on protection obligations, but is it not a matter for the tribunal to determine whether, having regard to whatever submissions the Minister may choose to make to the tribunal, the matter should be remitted for consideration of the security questions?

MR NIALL:   Yes, your Honour, and that would not foreclose any of the paragraphs in 415(2), if the tribunal was ‑ ‑ ‑

HIS HONOUR:   It would be a matter for the tribunal.

MR NIALL:   For the tribunal, yes, which is – yes, we do not seek ‑ ‑ ‑

HIS HONOUR:   A matter for the tribunal – that is, on constitutional writ relief the only thing that the Court does is say, (a) you have not done it in accordance with law, your decision is to be set aside, (b) you must do it again in accordance with law, but the law in accordance with which you must act is a law which permits a particular outcome which is remitter of security issues to the Minister, thus enlivening were they to be decided one way the AAT structure of review rather than cutting it off.

MR NIALL:   Yes, we would accept that, your Honour, and in a sense the orders we seek do not foreclose that at all.

HIS HONOUR:   Yes, but I do not want it going back to the RRT if that is what is to happen on some false footing where the RRT believes that its only question is yes or no.  It occurs to me that at least a possible point of view under 415(2) is that it is yes in part –

MR NIALL:   Yes in part.

HIS HONOUR:   ‑ ‑ ‑but as to other part, that is for others to consider, not us.

MR NIALL:   Indeed, your Honour, and often the tribunal might remit a case in relation to health, for example, but we do not seek to foreclose the tribunal having that facility.  In terms of the submissions ‑ ‑ ‑

HIS HONOUR:   Yes, but is the tribunal the party that ought to be determining for the first time the security issues?  Is not the tribunal in a position where if a security issue is raised – and all this is on the assumption that a security issue is to be raised by the Minister and the Minister may keep his powder as dry as he wishes at this point of the proceeding – but if a security issue were to be raised is that not something that should go back to the Minister and wend its way through whatever the ordinary system of review of that kind of decision is?

MR NIALL:   Yes, your Honour.  In terms of ‑ ‑ ‑

HIS HONOUR:   All this has been sprung on you and it is all sprung on you for the simple reason that I did not look at the regulations until about half an hour ago, Mr Niall; that is why you have had no notice of it.

MR NIALL:   Well, it is something that I should have looked at, your Honour, for which I apologise.  I just need to check one thing, which is the facility of the Minister to make submissions to the tribunal, he not being a party.  There is facility, as I recall, and I am just looking for the section, for the Secretary to provide information to the ‑ ‑ ‑

HIS HONOUR:   The Secretary is bound to remit the papers, I understand that.

MR NIALL:   Yes, but I assume that if the Minister put a submission to the tribunal, the tribunal would be bound to take it into account.

HIS HONOUR:   Well, I do not know.

MR NIALL:   The question then becomes, your Honour, is the basis for the matters that your Honour has directed my attention to is to whether and to what extent they require incorporation of that issue in the form of order.

HIS HONOUR:   Well, it would seem to me on the face of it that a mandamus to hear and determine according to law includes hear and determine according to the law which includes 415(2).

MR NIALL:   Precisely, your Honour; we would respectfully agree with that.

HIS HONOUR:   If this were to be the path down which we were to go it would need to be made abundantly plain that 415(2) is on the table and that it is not, as I say, a binary outcome.

MR NIALL:   We would accept that, your Honour.  We accept that there is no binary outcome in the sense that if we win we automatically get a protection visa – that is, the plaintiff – and if we lose, we do not.  We accept that there are more nuanced possibilities directly the subject of 415(2) when

read with the regulations, and your Honour has helpfully drawn our attention to those, with respect.

HIS HONOUR:   Yes, thank you, Mr Niall.  Well, Mr Donaghue, what are we to do?  I will be very grateful if you could point to where I have gone awry in the analysis I have made.

MR DONAGHUE:   Your Honour, we agree with most of what your Honour has put to ‑ ‑ ‑

HIS HONOUR:   It is the most which is the chilling word, Mr Donaghue.  Yes.

MR DONAGHUE:   I know, your Honour.  The part that we would seek to add to the analysis is that in our submission the RRT does not have jurisdiction to look at the Article 32 or 33 questions even if it wished to do so.

HIS HONOUR:   I understood that to be your submission, and I understood that a consequence of acceptance of that submission by the RRT would seem to me to at least – how can I put this neutrally – enhance the likelihood of the RRT being persuaded that it should remit that issue.

MR DONAGHUE:   Well, we certainly submit that that is so, and there is an authority we mentioned in our submissions, Daher v Minister, which is a Full Court authority, which if the RRT follows it would say what the RRT must do having reached a conclusion on the issues within its jurisdiction is to send the other issues back to the Minister to be looked at, and we did note I think in footnote 5 of our submissions these provisions that your Honour is referring to, regulation 33.  So we submit that the concern we have is that those on my side of the Bar table are not aware of a power or a practice by which the Minister would be able to make the submissions to the RRT to persuade it that that is the appropriate way for it to proceed, and if that is the only lawful way for it to proceed then we submit there is this difficulty.

We completely accept that your Honour could send it to the RRT to look at the Article 1A questions, and the tribunal can do that.  If the plaintiff loses on those issues, of course that is the end of the matter.  If the plaintiff succeeds on those issues, we say it must then go the Minister.  The Minister may or may not then make a decision on security grounds.  If he does, it goes to the RRT.  So to that extent I think that is completely consistent with what your Honour has put to my friends.

HIS HONOUR:   Subject to this question of can the Minister be heard, would it not be for the Minister to put the cards on the table in the tribunal by saying that there is at least a question?

MR DONAGHUE:   The Minister can be heard, yes.   There is at least a question ‑ ‑ ‑

HIS HONOUR:   Absent putting it on the table would not the tribunal in those circumstances go on to make a final decision?  Can I explain what is driving this?

MR DONAGHUE:   Yes.

HIS HONOUR:   First there is the difficulty that the plaintiff does not seek certiorari to quash the Minister’s decision.  The Minister accepts that that decision is infirm and yet there is therefore no application to quash it.  The system has to work coherently.  It seemed to me that some coherence in the system was injected by this path.  I may be quite wrong.

MR DONAGHUE:   Your Honour, we do not submit that you are wrong.  It will work coherently in that way as long as the RRT acts according to law and ‑ ‑ ‑

HIS HONOUR:   And if it does not who has an interest to apply?

MR DONAGHUE:   Well, the Minister would be in a position to seek review of that decision.  There are occasionally ministerial applications for review of RRT decisions so I do not submit that there is not a judicial review option there.  Our concern is that that pathway means that if the Minister does ultimately choose to make a security decision, that decision will not be made until some period of time down the track because we will have gone through the RRT process first and then an AAT process will commence, so it will drag out the decision‑making process rather than sending it all to one decision–maker who can say, I will do it on character grounds or 1A grounds or whatever grounds seem appropriate immediately and then get on with review in either the RRT or AAT depending on the basis for the decision.

So it seemed to us more efficient to go back to the start and say there has never been any valid consideration of this protection visa and then to allow a decision to be made by the only person who can choose between all of the available grounds for the decision, being the Minister; that is why we urge that path upon the Court.  I do accept that it can be sent to the RRT for the limited purposes of matters within its jurisdiction.  In terms of your Honour’s question ‑ ‑ ‑

HIS HONOUR:   Can I make this perhaps improvident response to that submission?  The Minister has got to put the cards on the table sooner rather than later about this question of security and it is not I think appropriate that it be either done or required to be done here, on the contrary, but I do wonder whether it is not appropriate that it be done no later than at the RRT.

MR DONAGHUE:   Indeed, if it can be done.

HIS HONOUR:   Well, can we explore that at all, this question of can it be done, because that may be an important element of it?

MR DONAGHUE:   Yes.  Your Honour, can I add one point?  I am not sure how much help I am going to be able to be to your Honour on that, but we did have a look at the way that the RRT usually disposes of matters before it and it seemed to us just on an admittedly imperfect survey that in the very large majority of cases the RRT does not purport to make a final decision, it does not say, I grant X a protection visa.  What it does at the end of its decision is it makes a recommendation either that the person is owed protection obligations under Article 1A or that the person is owed protection obligations for the purposes of section 36, so it makes a recommendation directed to that particular criteria and then leaves the final decision to be made on the other criteria, health or whatever other criteria are engaged by the Minister.

So if that model were to be followed the problem would never arise because all the RRT would do would be make the 1A decision and there would then need to be that further decision‑making.  Now, that may not help your Honour much but that is what we understand this ‑ ‑ ‑

HIS HONOUR:   We never see those decisions, do we?

MR DONAGHUE:   No.

HIS HONOUR:   We see only the other form of decision.

MR DONAGHUE:   Indeed.  So we looked at the question, is the RRT at all likely to grant a visa at the end of this process and the answer to that seems to be no, whether or not it would be empowered to do so by exercising all of the powers of the original decision‑maker.

HIS HONOUR:   Well, 415(1) plus (2)(b) would seem to be an ample grant of power.

MR DONAGHUE:   It would suggest so, save for the jurisdictional point that we make.  If there are criteria that it is not open to the tribunal to consider then section 65 would not be properly engaged because the tribunal would not properly be able to consider all of the things the Act requires to be considered, so that would be an issue.

HIS HONOUR:   Well, again, a possibly improvident answer is that these seem to me to be issues of a kind about which I should be expressing no opinion.

MR DONAGHUE:   I fully accept that, your Honour.  The question, it seemed to us, is whether it is in circumstances where our friends come to the Court seeking leave to amend your Honour as part of considering that application should be considering whether they are seeking appropriate relief to give effect to the orders of the Court or to the reasons of the Court, and in our submission the reasons of the Court demonstrate that both decisions are nullities and also obviously emphasise the importance of the AAT review path in circumstances where a security decision is to be made, and for that reason we took the view that the appropriate way to give effect to the reasons of the Full Court was to send it back to the Minister.  If your Honour is minded to adopt the other pathway, we submit that it will ultimately get to the same point, it is just that it might be a somewhat longer and more torturous route to getting there, but I do not say we cannot get there or that the regime will not be able to generate that result.

HIS HONOUR:   What form of mandamus should go if it were mandamus directed to the tribunal only?  Would it suffice to have mandamus go to hear and determine according to law?

MR DONAGHUE:   Your Honour, I think the answer to that question must be, yes, it would suffice because we say that the legal limits are there.  It might be that it would avoid the confusion for a more precise order to be made.

HIS HONOUR:   I would be glad of any assistance that counsel on either side could offer for a form of words that would avoid subsequent difficulty.  If I am to go down this path it would seem to me to be on the clearly understood footing that the powers available to the tribunal under 415(2)(c) remain amply available to it.

MR DONAGHUE:   Yes.  Well, not just in our submission the powers but it is both the matter of ‑ ‑ ‑

HIS HONOUR:   I understand you say it is not just power, they have no power to ‑ I understand that.

MR DONAGHUE:   They have no power, and that regulation is reflective of that submission.

HIS HONOUR:   Well, I understand the submission.  It is, as I say, one which at the moment I think I should not pass upon.

MR DONAGHUE:   No, and my difficulty in considering your Honour’s request for more precise wording is it is difficult to be more precise about a carve out in mandamus without asking your Honour to express an opinion on that issue, so it may be that we should just content ourselves with hear and determination according to law.  If we can find a pathway by which we can put material before the tribunal we will do that, and if I suppose the tribunal goes wrong then that will delay the process still further, but there is a remedy available, and we will do our best to avoid that, of course.

HIS HONOUR:   Yes, enough.

MR DONAGHUE:   Yes, indeed.  If the Court pleases.

HIS HONOUR:   Yes.  Well, Mr Niall, where have we got to other than my setting examination papers?

MR NIALL:   Well, in our submission, your Honour, it could not yet be said to be a foregone conclusion that security will be raised as an issue.  There are a number of things that might happen that obviates that course.  So it is not a foregone conclusion that it will go to the Minister and the Minister will make a decision and it will be in the AAT, by any means.  If the mandamus we seek in paragraph 5 directed attention by the words, for the purpose of making one of the orders in 415(2) it would clearly direct the tribunal to 415(2) and each of those paragraphs.  It is perhaps unnecessary, but for the avoidance of doubt it would clearly direct the tribunal to that paragraph – to those four paragraphs as available options on a review.

HIS HONOUR:   What I have in mind then may be something along the lines of hear and determine in accordance with section 415(2) of the Migration Act 1958 (Cth) and all other powers enabling it to decide the review.

MR NIALL:   Yes, your Honour, sufficiently pointed in terms of direction.

HIS HONOUR:   That may be pointed and yet making plain that I am not confining it.

MR NIALL:   In terms of the question of the Minister’s ability to put material to the tribunal we would direct your Honour’s attention to 418(3) which enables the Secretary to give to the Registrar any document ‑ ‑ ‑

HIS HONOUR:   Yes, have we not looked at that?  Is that not just the document transmission power?  I cannot for the life of me bring to mind the case that I do have in mind.

MR DONAGHUE:   Nguyen, I think.

MR NIALL:   Nguyen.

HIS HONOUR:   Is it Nguyen?  How could one ever forget Nguyen?  I thought that was just a document transmission obligation, but can I put you on the spot?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   And if it embarrasses you, you should decline to answer.  Is your side of the record going to object to the Minister putting a submission to the tribunal on the issues that we have discussed?  If you would prefer not to answer, do not feel in the slightest embarrassed by saying that I would prefer not to.

MR NIALL:   I would prefer not to only to survey the Act.

HIS HONOUR:   Yes, by all means, Mr Niall.  The question was going beyond what probably should properly have been asked, but there we are.

MR NIALL:   Again, the form of mandamus would cater for all of those contingencies.

HIS HONOUR:   Yes.

MR NIALL:   We would seek those orders with the amendment that your Honour proposed.

HIS HONOUR:   May I ask the parties whether they think it desirable or necessary that I give more formal reasons for arriving at these conclusions?  It is a question genuinely asked, expecting an answer.  Either way you should not feel it is judicial indolence looking for an excuse.

MR NIALL:   We would be content either way, your Honour, if that is of any assistance to your Honour.

HIS HONOUR:   Yes.  What do you think, Mr Donaghue?  Is it a matter on which I should give some reasons, perhaps even considered reasons?

MR DONAGHUE:   Your Honour, can I answer in this way?  We would for the most part be content to be in your Honour’s hands.  It does occur to us that one possibility is that the transcript of the hearing this morning may be a document that can properly be transmitted to the tribunal pursuant to 418(3).

HIS HONOUR:   Yes.

MR DONAGHUE:   To that end, if your Honour were to express very brief reasons for your decision that might be of some assistance going forward.

HIS HONOUR:   By a further amended application for an order to show cause dated 4 June 2012, the plaintiff in this matter sought relief by way of:

(1)an order absolute for a writ of certiorari setting aside or quashing the decision and/or finding of the Director General of Security made in or about May 2012 to issue an adverse security assessment in respect of the plaintiff;

(2)an order absolute for a writ of habeas corpus against the Officer in Charge, Melbourne Immigration Transit Accommodation and/or the Secretary of the Department of Immigration and Citizenship; 

(3)further or alternatively, a mandatory injunction directing that the plaintiff be discharged from the custody of the Officer in Charge, Melbourne Immigration Transit Accommodation and/or the Secretary, Department of Immigration and Citizenship; and

(4)further or alternatively, a declaration that the plaintiff’s detention at the Melbourne Immigration Transit Accommodation is unlawful.

On 8 June 2012, the parties joined in agreeing facts for an amended special case reserving questions for the consideration of the Full Court.  Those questions were amended and on 5 October 2012 the Full Court answered the questions as so amended (see Plaintiff M47/2012 v Director General of Security and Ors (2012) HCA 46). The parties now apply for orders finally disposing of the proceedings in this Court in accordance with the answers which have been given to the amended questions submitted for the opinion of the Full Court.

The parties differ about what orders should now be made, the central point of difference being whether certiorari should go to quash not only the decision of the Refugee Review Tribunal dated 26 May 2011, but also the decision of the delegate of the Minister dated 18 February 2011 to refuse the plaintiff a protection visa.  According to whether certiorari should go to quash either or both of the decisions of the tribunal and the delegate, it is accepted that mandamus should also issue requiring the decision-maker in question to determine the plaintiff’s application for a protection visa dated 25 June 2010 according to law.

The plaintiff seeks certiorari to quash only the decision of the tribunal. The plaintiff points out that the application for review of the delegate’s decision which was validly made to the tribunal remains undetermined, because the tribunal made its decision in a manner attended by jurisdictional error. In particular, the tribunal acted on the basis, now demonstrated by the Full Court’s decision to be wrong, that public interest criterion 4002 within the meaning of clause 866.225 of Schedule 2 of the Migration Regulations 1994 is valid. The Full Court, answering question 2A of the questions reserved for its consideration by the amended special case, said that:

the prescription of public interest criterion 4002 as a criterion for the grant of a protection visa is beyond the power conferred by s 31(3) of the . . . Act and is invalid.

The Minister and other defendants submit that it is now apparent that not only is the decision of the tribunal flawed but also so too is the decision of the delegate and that the appropriate course to follow is to quash the delegate’s decision and, in effect, have the process for consideration of the plaintiff’s application for a protection visa class XA commence afresh. 

In the course of argument this morning, attention was drawn to what would appear to be the consequences of setting aside the decision of the tribunal and remitting the matter to the tribunal for further hearing and determination according to law. Section 415(2) of the Act provides that:

The Tribunal may:

(a)      affirm the decision; or

(b)      vary the decision; or

(c)if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)      set the decision aside and substitute a new decision.

Regulation 4.33 of the Migration Regulations provides amongst other things that:

For the purposes of paragraph 415(2)(c) of the Act, an application for a Protection (Class XA) visa is prescribed.

Subregulation (3) of that regulation provides that:

For paragraph 415(2)(c) of the Act and paragraph 43(1A) (c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT-reviewable decision by section 452 of the Act):

(a)     it is a permissible direction that the applicant satisfies each matter, specified in the direction, that relates to establishing whether the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees; but

(b)     it is not a permissible direction that the applicant satisfies a matter specified in Article 1F, 32 or 33(2) of the Convention.

Regulation 4.33(4) further provides that:

For paragraph 415(2)(c) of the Act and paragraph 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT-reviewable decision by section 452 of the Act):

. . . 

(c)     it is not a permissible direction that the applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:

(i)       the applicant is a danger to Australia’s security; or

(ii)       the applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.

The defendants would submit that, having regard to those provisions as well also as other provisions of the Act, in the course of its conducting a review the tribunal may not pass on questions relating to the satisfaction of so much of the character provisions of the Act as relate to questions of security.  As to that question, I express no view one way or the other.

It is, however, apparent from the provisions that I have mentioned that an available course to be adopted by the tribunal in any review, and in this review if the matter is remitted to it, is in the words of section 415(2) to:

remit the matter for reconsideration [by the Minister or his delegate] in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations –

which would include such matters as whether the plaintiff satisfies the Article 1A requirements of the convention, but would not include the questions of the kind expressly excepted by operation of regulation 4.33(3)(b) or (4)(c). 

In circumstances where the plaintiff seeks only certiorari to quash the decision of the tribunal and does not seek certiorari to quash the decision of the Minister, I am of opinion that the only relief which now should go is relief that would quash the tribunal’s decision.  It would in the circumstances I have described not be appropriate for this Court of its own motion, even with the encouragement of the defendants, to grant certiorari to quash the decision of the Minister’s delegate.

In framing the mandamus which should issue to the tribunal to hear and determine the matter in accordance with law, it is important to draw specific attention of the tribunal to the availability of the course expressly contemplated by section 415(2)(c) of the Act. Whether that course can or should be adopted by the tribunal will be a matter for its decision according to all the facts and circumstances as then exist before it.

It may be – again I express no concluded view on the issue – that it would be open to the tribunal to consider that absent an indication by the Minister that questions of security are raised the power of the kind identified in 415(2)(c) may perhaps have to be exercised in a manner that reflects the absence of such indication.  These are, however, matters for the tribunal to determine.  They are not matters on which this Court should pass judgment in these proceedings, let alone at this stage of these proceedings.

For these reasons I am of opinion that, subject to anything that counsel may wish further to urge about the form of the orders, orders should now be made substantially in accordance with the following terms:

(1)The Refugee Review Tribunal should be joined as a party and the title of the proceeding be amended accordingly.

I should have asked Mr Donaghue and did not.  The joinder of that party would ordinarily lead to adjournment and ‑ ‑ ‑

MR DONAGHUE:   I have a submitting appearance, your Honour.

HIS HONOUR:   Excellent.  That puts that issue to bed.  If you could file in Court that submitting appearance I would be much obliged.

MR DONAGHUE:   Thank you

HIS HONOUR:   The orders would be that:

(1)The Refugee Tribunal be joined as a party and the title of the proceeding be amended accordingly.

(2)The plaintiff should have leave to amend the relief claimed in his application to include:

(a)an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal dated 26 May 2011; and

(b)an order in the nature of mandamus requiring the Refugee Review Tribunal to review according to law the decision of the delegate of the Minister dated 18 February 2011 to refuse a protection visa.

(3)The times fixed by section 486A(1) of the Migration Act 1958 (Cth) and by rule 25.06.1 of the High Court Rules 2004 as times within which the plaintiff may apply for the relief sought in his application are extended nunc pro tunc to a date seven days after the making of this order.

It would seem to me that the order that should go is not as framed but that:

(4)An order in the nature of certiorari quashing the decision of the Refugee Review Tribunal dated 26 May 2011 should go.

(5)An order in the nature of mandamus should issue to the Refugee Review Tribunal requiring that tribunal to hear and determine in accordance with section 415(2) of the Migration Act 1958 (Cth) and all other powers enabling it to decide the plaintiff’s review in accordance with law.

Order 6 would be:

(6)Declare that clause 866.225(a) of Schedule 2 of the Migration Regulations 1994 is invalid to the extent that it prescribes public interest criterion 4002 as a criterion for the grant of a protection visa.

(7)The fifth defendant, which is to say the Commonwealth, should pay the plaintiff’s costs of the proceeding.

Do counsel wish to be heard about the form of the orders that I have indicated should be made?

MR NIALL:   No, your Honour.

HIS HONOUR:   Yes, Mr Donaghue?

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   Then orders will be made in those terms.  I am obliged to counsel for their assistance in the matter.  Adjourn the Court.

AT 10.22 AM THE MATTER WAS CONCLUDED