Re Refugee Review Tribunal; Ex parte Aala

[2000] HCA 57

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE REFUGEE REVIEW TRIBUNAL & ANOR                RESPONDENTS

EX PARTE MANSOUR AALA   PROSECUTOR

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
16 November 2000
S185/1999

ORDER

1.   Order absolute for a writ of prohibition prohibiting the second respondent from taking action on the decision of the first respondent made on 3 April 1998.

2.   Order that time be extended and that a writ of certiorari issue to quash the decision of the first respondent made on 3 April 1998.

3.   In respect of the application by the prosecutor dated 4 October 1996, Order absolute for a writ of mandamus requiring the first respondent to consider and determine the application according to law.

4.   Second respondent to pay costs of prosecutor, both in respect of the order nisi and the hearing before Full Court.

Representation:

P E King with K M Hawes for the prosecutor (instructed by the prosecutor)

No appearance for the first respondent

T Reilly with G A Mowbray for the second respondent (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Refugee Review Tribunal; Ex parte Aala

Immigration – Refugees – Review Tribunal – Failure to afford procedural fairness – Prosecutor denied opportunity to be heard on matters affecting credibility – Whether prosecutor denied possibility of a successful outcome.

Administrative law – Constitutional writs – Nature of Constitutional writ of prohibition – Procedural fairness – Availability of writ of prohibition for failure to accord procedural fairness – Whether prohibition available as of right or by discretion – Whether application should be rejected due to delay.

Constitutional law – Construction of Constitution – Meaning to be given to words in s 75(v) – Relevance of meaning at time of commencement of Constitution.

Words and phrases – "a writ … of prohibition", "procedural fairness", "prerogative writ".

Constitution, ss 75(iii), 75(v).
Migration Act 1958 (Cth).

1. GLEESON CJ.   The facts, which are not in dispute, are set out in the reasons for judgment of other members of the Court.

2. The issues are whether, in the events that occurred, involving an erroneous statement by the Refugee Review Tribunal as to the material which was before the Tribunal, there was a denial of procedural fairness, and, if so, whether the consequence is that prohibition should go under s 75(v) of the Constitution.

3. As to the first issue, the statement in question covered a matter which had a bearing upon the credibility of the prosecutor.  It misled the prosecutor, as a consequence of which he was deprived of the opportunity to answer, by evidence and argument, adverse inferences which were based in part upon a misunderstanding of his previous conduct.  Had he been given an opportunity to correct the misunderstanding, a different view might have been taken as to his credibility.

4. It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding[1].  The Tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the Tribunal.  It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same.  But no one can be sure of that.  Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.  As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility.  The circumstance that this resulted from an innocent mis-statement does not alter the position.  The question concerns the nature and extent of the statutory power exercised by the Tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the Tribunal.

   [1]Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ.

5. I agree with what has been said by Gaudron and Gummow JJ as to availability of prohibition as a remedy, under s 75(v) of the Constitution, in a case of denial of procedural fairness, and as to the discretionary nature of the remedy.

6. I agree with the orders proposed by Gaudron and Gummow JJ.

7. GAUDRON AND GUMMOW JJ.   The first respondent is the Refugee Review Tribunal ("the Tribunal"), established under Div 9 (ss 457‑470) of Pt 7 of the Migration Act 1958 (Cth) ("the Act"). The second respondent is the Minister responsible for the administration of the Act, the Minister for Immigration and Multicultural Affairs ("the Minister").

8. The prosecutor is an Iranian citizen who arrived in Australia in 1991.  The Tribunal found that he had been a "low level" employee of Savak, the secret police of the former Shah, that he had an insignificant involvement with the Mujahadeen, which opposed the regime established after the fall of the Shah, and that between approximately 1981 and 1988 he had been involved in the sale of properties of the former Shah and his associates.  The Tribunal was not satisfied that, in the years before the prosecutor came to Australia, the interest in and treatment of the prosecutor by the Komiteh (the "morals police") amounted to persecution.  Nor were the arrest and alleged execution, after the prosecutor's departure, of his business colleague, Ali Tehrani, events from which any adverse consequences might flow to the prosecutor.  The result was that the prosecutor did not satisfy the Tribunal that he had a well-founded fear of persecution in the necessary sense.

9. The prosecutor was previously the applicant and appellant in litigation in the Federal Court of Australia against the Minister. The jurisdiction of the Federal Court was that conferred by Pt 8 (ss 474‑486) of the Act. The litigious history and the relevant factual findings by the Tribunal are detailed in the judgment of Callinan J. However, it is convenient to refer here to some aspects of that history, and will be necessary to do so in further detail later in these reasons.

10. The result of previous exercises of the judicial power of the Commonwealth has been an affirmation by the Federal Court of the decision of the Tribunal, in turn affirming the determination of a delegate of the Minister not to grant the prosecutor a "protection visa"[2]. Nevertheless, in the present proceeding in this Court under s 75(v) of the Constitution, the prosecutor seeks orders to the contrary effect, namely orders quashing that decision of the Tribunal and requiring the Tribunal to redetermine the application to review the determination by the delegate.

    [2]A criterion for the grant of such a visa is that the prosecutor is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention").  As to the Convention and Protocol, see Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 at [107].

11. No relief is sought from this Court which would quash the order of the Full Court dismissing the appeal from the order of Branson J affirming the decision of the Tribunal. Nevertheless, the effect of the relief sought in this Court would be to outflank and collaterally impeach the respective rights and liabilities under the Act of the prosecutor and the Minister by quashing the administrative decision which the order of the Federal Court affirmed.

12. The pursuit of this course is open to the prosecutor as a consequence of the holding in Abebe v The Commonwealth[3] that Pt 8 of the Act is valid. The present significance of Abebe is its rejection of a proposition that the right put in issue in the Federal Court application under Pt 8 was the right of the Minister to act upon or to give effect to the decision of the Tribunal, rather than a right to have that decision set aside on one or other of the grounds permitted by s 476. The ground upon which relief is sought in this Court is one denied consideration by the Federal Court by par (a) of s 476(2). This specifies as a ground upon which an application may not be made to the Federal Court a complaint:

    "that a breach of the rules of natural justice occurred in connection with the making of the decision".

    [3](1999) 197 CLR 510.

13. In this Court, the prosecutor obtained an order nisi requiring the Tribunal and the Minister to show cause before the Full Court why prohibition should not issue, why certiorari should not issue removing the decision of the Tribunal into this Court to be quashed, and why mandamus should not issue directing the Tribunal to consider according to law the prosecutor's application for a protection visa.  It will be apparent that the claims for certiorari and mandamus are consequential upon that for prohibition.

14. The power of this Court to issue certiorari is not stated in Ch III of the Constitution. Rather, in a matter such as the present, the conferral of jurisdiction to issue writs of prohibition and mandamus implies ancillary or incidental authority to the effective exercise of that jurisdiction. In the circumstances of this matter, that includes authority to grant certiorari against the officer of the Commonwealth constituting the Tribunal[4]. The matter may also attract the exercise of the powers conferred in general terms by s 31 of the Judiciary Act 1903 (Cth) ("the Judiciary Act")[5].

    [4]R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 33. See also Glover v Walters (1950) 80 CLR 172 at 174‑175.

    [5]Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 604, 618, 630. Section 33(1) of the Judiciary Act empowers the High Court to direct the issue of certain writs, but their specification does not (s 33(2)) limit by implication the power of the High Court to direct the issue of any writ. Section 31 empowers the High Court to make such "judgments" (defined in s 2 as including orders) as are necessary for the doing of complete justice in any cause or matter pending before it; cf R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 33; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 396 [33].

15. The prosecutor asserts that prohibition lies because the decision of the Tribunal was made beyond its jurisdiction.  This was because it was made in breach of the rules of natural justice, and the Minister will act upon that decision unless prohibited from doing so.  The relevant "rule" of natural justice is that requiring procedural fairness.

16. This raises important, and threshold, questions respecting the meaning and scope of the term "prohibition" in s 75(v) of the Constitution. In particular, there are questions whether a denial of procedural fairness by an officer of the Commonwealth, such as the officer constituting the Tribunal in this case, results in the officer exceeding jurisdiction or, even if it does not do so, whether prohibition nevertheless may lie. Acceptance that prohibition would lie even if there had been no action which was taken or threatened in want of or in excess of jurisdiction would cut across the basic proposition that prohibition in s 75(v) is concerned with the prevention of ultra vires activity by officers of the Commonwealth. There is a further question whether, as a matter of discretion, prohibition may be refused, particularly where any denial of procedural fairness is classified as "trivial".

17. Before considering the merits of the complaint of the denial of procedural fairness, it is convenient to turn to these threshold questions. We conclude that (i) the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction in respect of which prohibition will go under s 75(v); (ii) if there has been a breach of the obligation to accord procedural fairness, the consequences of the breach were not gainsaid by classifying the breach as "trivial" or non-determinative of the ultimate result – the issue is whether there has or has not been a breach of the obligation; (iii) the practical content of the obligation, and thus the issue of breach, may turn upon the circumstances of the particular case; and (iv) the remedy of prohibition under s 75(v) does not lie as of right, but is discretionary.

    Prohibition, procedural fairness and s 75(v) of the Constitution

18. Section 75(v) may not add to the jurisdiction conferred by s 75(iii). It appears that s 75(v) was included as a safeguard against the possibility that the provision in s 75(iii) respecting matters in which a person being sued on behalf of the Commonwealth is a party would be read down by reference to decisions construing Art III of the United States Constitution[6].

    [6]Ah Yick v Lehmert (1905) 2 CLR 593 at 608‑609; Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 363‑368; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 178‑179, 204, 221, 231‑232.

19. Nevertheless, in R v Federal Court of Australia; Ex parte WA National Football League[7], Barwick CJ referred to the term "prohibition" in s 75(v) as importing "the law appertaining to the grant of prohibition by the King's Bench". However, in the operation of s 75(v) of the Constitution, terms such as "prohibition" and "jurisdiction" are not simply institutions or concepts of the general law. They are constitutional expressions[8].

    [7](1979) 143 CLR 190 at 201.

    [8]See Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652‑653.

20. The term "prerogative writ" came to be used in England with respect to prohibition and other writs because they were conceived as being intimately connected with the rights of the Crown and to ensure that the prerogative was not encroached upon by disobedience to the prescribed structure for the administration of justice[9]. In Australia, the Parliament consists of the Queen, the Senate and the House of Representatives (Constitution, s 1) and the executive power of the Commonwealth is vested by s 61 in the Queen and is exercisable by the Governor-General as the Queen's representative. However, save perhaps provision in s 72(i) for appointment of judges by the Governor-General in Council, the Crown is not an element in the Judicature established by Ch III. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd[10], Deane and Gaudron JJ said that, taken together, s 75(iii) and s 75(v) had the effect of ensuring "that there is available, to a relevantly affected citizen, a Ch III court with jurisdiction to grant relief against an invalid purported exercise of Commonwealth legislative power or an unlawful exercise of, or refusal to exercise, Commonwealth executive authority".

    [9]Worthington v Jeffries (1875) LR 10 CP 379 at 382; de Smith's Judicial Review of Administrative Action, 4th ed (1980) at 584.

    [10](1995) 183 CLR 168 at 204‑205.

21. What is thereby enforced is the fidelity required by covering cl 5 to the Constitution itself rather than any fidelity owed to the Crown as a particular element in the constitutional structure. The term "prerogative writ" has been used as a convenient shorthand, particularly to differentiate in s 75(v) writs of mandamus and prohibition from an injunction. But it is an inapt description of any remedy granted by a court exercising the judicial power of the Commonwealth. If any shorthand expression is to be used, "constitutional writ" would be preferable.

22. Prohibition goes against officers of the Commonwealth in circumstances not contemplated by the Court of King's Bench and not within the expression "excess of jurisdiction" as understood in England. Thus, an officer of the Commonwealth may be restrained by prohibition in respect of activity under an invalid law of the Parliament or of activity beyond the executive power of the Commonwealth identified in s 61 of the Constitution. Further, the common law did not have to take into account the errors of a superior federal court in determining the constitutional limits of its own jurisdiction, a point developed by Brennan J in R v Ross‑Jones; Ex parte Green[11].  Hence the force of the statement by Mason, Brennan and Dawson JJ in Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association[12]:

    "The jurisdiction of this Court to grant prohibition under s 75(v) of the Constitution directed to a non-judicial tribunal is not necessarily governed by the same principles as those which govern the common law jurisdiction of a superior court to grant prohibition to an inferior court."

    [11](1984) 156 CLR 185 at 217‑218.

    [12](1986) 60 ALJR 588 at 594.

23. Nevertheless, in considering the particular relationship between prohibition, excess of jurisdiction and denial of procedural fairness, some assistance is derived from considering the state of affairs in the administration of prohibition both in England and in the Australian colonies at the time of the commencement of the Constitution, and thereafter.

24. The phrase "a writ … of prohibition" has no meaning other than as a technical legal expression.  The same is true of the term "patents of inventions" in s 51(xviii) which was construed in Grain Pool (WA) v The Commonwealth[13]. An appreciation of the essential characteristics of such an expression is assisted by an examination that involves legal scholarship in preference to intuition or divination. The examination appropriately may include the understanding of that expression at the time of the commencement of the Constitution and thereafter.

    [13](2000) 74 ALJR 648; 170 ALR 111.

25. That is not to adopt the proposition that the Constitution should be interpreted merely with the text in one hand and a dictionary in the other[14]. Nor is it to tie constitutional interpretation solely to past states of affairs. However, on analysis, it may appear that the limitation which the Minister contends attaches to s 75(v), so that it does not authorise prohibition where the complaint is of denial of procedural fairness, did not apply to prohibition as understood at the commencement of the Constitution. If that be so, and this limitation is not required for the adaptation of the remedy for the exercise of the judicial power of the Commonwealth under s 75(v), then it should not now be read into the constitutional provision.

    [14]See the remarks of Learned Hand J in Cunard SS Co v Mellon 284 F 890 at 894 (1922).

26. We begin with New South Wales legislation enacted in the first year of federation. Section 32 of the Industrial Arbitration Act 1901 (NSW), which established the Court of Arbitration, provided:

    "Proceedings in the court shall not be removable to any other court by certiorari or otherwise; and no award, order, or proceeding of the court shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature on any account whatsoever."

    In The Master Undertakers' Association of NSW v Crockett, Isaacs J said[15]:

    "By sec 32 no power exists of appeal or review of its decisions, always supposing, of course, they are within its jurisdiction and not contrary to natural justice."

    [15](1907) 5 CLR 389 at 395.

27. This indicates that breach of the rules of natural justice did not go to jurisdiction, but nevertheless might lead to the quashing of the proceedings in question.  Earlier, in Ex parte McShane[16], Hargrave J had said that prohibition issued out of the Supreme Court of New South Wales on two grounds:

    "where there is want of jurisdiction, and where the proceedings have been against natural justice".

    On the other hand, speaking in the House of Lords, Lord Selborne had said that, if the decision-maker under a statutory power had done anything "contrary to the essence of justice", then "[t]here would be no decision within the meaning of the statute"[17].  This suggested that a breach of the rules of natural justice would go to the statutory jurisdiction of the decision-maker, and so was a ground of interference within the doctrine of jurisdictional error.

    [16](1878) 1 SCR (NS) (NSW) 10 at 13.

    [17]Spackman v Plumstead Board of Works (1885) 10 App Cas 229 at 240.

1. In his work, published in 1887, Informations (Criminal and Quo Warranto), Mandamus and Prohibition, Shortt, when discussing prohibition, referred to the well-developed practice of the King's Bench in issuing prohibition to the Court of Admiralty and to the ecclesiastical courts.  This activity had a long history.  Sir John Holt CJ granted prohibition[18] where a Consistory Court had refused to the prosecutor, a coroner, a copy of the libel instituting proceedings against him for supposed profanation in a cemetery in digging a corpse for a view.  A statute of 1414[19], with the expressed object of relieving the need to approach the Royal Courts for prohibition, obliged the ecclesiastical courts to see that the libel was "granted and delivered to the Party without any Difficulty"[20].  Holt CJ determined that the prohibition would issue[21] "only quousque, which is ipso facto discharged by granting a copy of the libel".

   [18]Anon (1704) 6 Mod 308 [87 ER 1047].

   [19]2 Hen V s 1, c 3.

   [20]The statute did not extend to proceedings in the Admiralty Court: Anon (1699) 1 Ld Raym 442 [91 ER 1194].

   [21]Anon (1704) 6 Mod 308 at 308 [87 ER 1047 at 1048].

2. Much later, it was suggested in this Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd that[22]:

   "the tenor of the writ might perhaps be moulded to meet the situation and the board and its delegate prohibited quousque, eg until they were satisfied lawfully or until they abandoned the unlawful course or criterion:  see per Willes J in Mayor of London v Cox[23], and in White v Steele[24]".

   [22](1953) 88 CLR 100 at 118.

   [23](1867) LR 2 HL 239 at 275, 276.

   [24](1862) 12 CB (NS) 383 at 412 [142 ER 1191 at 1202‑1203].

3. As the decision of Holt CJ indicates, prohibition lay against the ecclesiastical and admiralty courts where there had been what now would be identified as a denial of procedural fairness.  More broadly, prohibition issued where those courts, acting by the rules of the civil law, had decided matters of common law arising incidentally before them in a manner different from that in which the common law courts would have decided them[25].  This was so although what appeared to be involved was error within jurisdiction.  Shortt added[26]:

   "In such cases, though the matter of the suit before the Court Christian or the Admiralty Court were clearly within the jurisdiction of such Court, and though the erroneous judgment might possibly have been corrected on appeal, prohibitions have from very early times been granted."

   The learned author took this as an instance of the cases referred to by Eyre LCJ in delivering the opinion of the judges to the House of Lords in Home v Earl Camden[27].  His Lordship said[28]:

   "It undoubtedly belongs to the king's temporal courts to restrain courts of peculiar jurisdiction from exceeding the bounds prescribed to them; and by far the greater part of the instances in our books, in which prohibitions have issued, are cases of plain excess of jurisdiction.  But some of the instances go beyond an excess of jurisdiction, and seem rather to fall under the head of wrong and injustice done to the party, by refusing him, in the course of a proceeding strictly within the jurisdiction, some benefit or advantage to which the common or statute law intitled him, perhaps in opposition to the civil or canon law, by which the general proceedings of those courts are regulated."

   [25]For example, by denying a plea raising the Statute of Limitations 1623 (Berkeley v Morrice (1668) Hardres 502 [145 ER 569]) or by misconstruing one of the Enclosure Acts (Gould v Gapper (1804) 5 East 345 [102 ER 1102]).

   [26]Informations (Criminal and Quo Warranto), Mandamus and Prohibition, (1887) at 437.

   [27](1795) 2 H Bl 533 [126 ER 687].

   [28](1795) 2 H Bl 533 at 535‑536 [126 ER 687 at 689].

4. The Lord Chief Justice was speaking in a litigation respecting the Prize Court.  He spoke of the previous struggle for jurisdiction between the ecclesiastical and the temporal courts[29].  Even after the introduction of the Judicature system a century later, in Mackonochie v Lord Penzance[30], the Queen's Bench Division issued prohibition against Lord Penzance in his capacity of Dean of the Arches.  Further, as late as 1872 prohibition still lay to the Court of Admiralty[31].  This was a sequel to "the judicial strife" carried on in the sixteenth and seventeenth centuries between the Courts of King's Bench and the admiralty courts in the course of which "matters raged so high that a war was declared between the two courts, and prohibitions were hurled from Westminister [sic] Hall without much order"[32].

   [29]Home v Earl Camden (1795) 2 H Bl 533 at 533‑534 [126 ER 687 at 688].

   [30](1881) 6 App Cas 424.

   [31]James v South Western Railway Co (1872) LR 7 Ex 287. See R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 385.

   [32]The People ex rel Adams v Westbrook 89 NY 152 at 155‑156 (1882).

5. In Mackonochie, Earl Cairns approved[33] the judgment of Thesiger LJ in the Court of Appeal, in which a distinction was drawn between the implied power of a court or tribunal to regulate matters of its practice and procedure (in respect of which generally an appeal, not prohibition, was the remedy) and a statutory provision relating to these matters (which might go to jurisdiction).  Thesiger LJ did contemplate prohibition in respect of procedural irregularities in the first category where there had been violation of "some fundamental principle of justice"[34], but unlike Lord Selborne in Spackman, did not link this with the statutory implication of a condition requiring observance of the rules of natural justice.

   [33](1881) 6 App Cas 424 at 440.

   [34]Martin v Mackonochie (1879) 4 QBD 697 at 731‑732.

6. There were many nineteenth century authorities in which procedural irregularities, within jurisdictional limits, were held not to attract prohibition[35].  They involved such unsuccessful complaints as unreasonable refusal to adjourn so that a defendant might obtain legal assistance[36]; trying a defendant at an unreasonably short time after laying of the information[37]; and refusing to hear a party's evidence[38].  Further, in Hooper v Hill[39], Davey LJ referred to the line to be drawn, albeit with difficulty, "between what is excess of jurisdiction and what is at most an indiscretion".  His Lordship observed that what appeared to be the practice in the Birmingham County Court of publishing a list of cases to be tried on a day in vacation when it was known that the judge would not be there was "not at first sight one to be commended", but continued that he could not say "that the practice in itself involves any excess of jurisdiction"[40].

   [35]They are collected in the article by D M Gordon, "The Observance of Law as a Condition of Jurisdiction", (1931) 47 Law Quarterly Review 386 at 404‑406; cf Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 165‑167.

   [36]R v Biggins (1862) 5 LT 605. The remedy sought was certiorari. See, more recently, R v Visiting Justice at Her Majesty's Prison, Pentridge; Ex parte Walker [1975] VR 883 at 894‑897 and R v Secretary of State for the Home Department, Ex parte Al‑Mehdawi [1990] 1 AC 876. In the latter case, the House of Lords held there was no denial by the decision-maker of natural justice, and no ground for certiorari, where the applicant had been deprived of his opportunity of being heard because of the default of his advisers, to whom he had entrusted the conduct of the matter.

   [37]R v Hughes (1879) 4 QBD 614 at 625; cf in New South Wales Ex parte McShane (1878) 1 SCR (NS) (NSW) 10 at 13.

   [38]Haggard v Pélicier Frères [1892] AC 61 at 63, 68.

   [39][1894] 1 QB 659 at 664.

   [40][1894] 1 QB 659 at 664.

7. The position in England at the time of the commencement of the Constitution was that (i) there was some support for the proposition that prohibition might lie in respect of at least some sufficiently serious denials of procedural fairness but that (ii) it was not clear whether this was to be understood as included within notions of jurisdictional error or was placed outside it as an independent head of complaint. The law was in a state of development. The doctrinal basis for the constitutional writs provided for in s 75(v) should be seen as accommodating that subsequent development when it is consistent with the text and structure of the Constitution as a whole.

8. The position in the colonies before the commencement of the Constitution also supports such an approach. In New South Wales, the establishment by statute of Courts of Petty Sessions and Small Debts Courts gave rise to a series of cases in which prohibition was granted in respect of procedural irregularities said to amount to a denial of natural justice. In Ex parte Lucas[41], a more limited view of what amounted to a denial of natural justice was taken by Cullen CJ after a review of these cases.  The passage in the judgment of Eyre LCJ in Home v Earl Camden, set out above, was repeated by his Honour[42].  He also referred to the discussion by Maule J in Ex parte Story[43] of cases where prohibition had gone where an ecclesiastical court had been proceeding against a person "who has never been called into it at all", this being "proceeding in a manner that is contrary to natural justice".  Cullen CJ approved[44] a passage in the judgment of Owen J in Ex parte Fealey[45] where that judge had observed that the erroneousness or injustice in the judgment of an inferior court did not make it contrary to natural justice; Owen J had continued[46]:

   "A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind.  That conduct is said to be contrary to natural justice, and is a ground for the interference of this Court".

   The New South Wales decisions, unlike those in England concerned with the ecclesiastical and admiralty courts, which owed their existence to "common law" in a broad sense of that term[47], were concerned with inferior courts and tribunals owing their existence purely to statute.

   [41](1910) 10 SR (NSW) 325.

   [42](1910) 10 SR (NSW) 325 at 331‑332.

   [43](1852) 12 CB 767 at 776‑777 [138 ER 1106 at 1110].

   [44](1910) 10 SR (NSW) 325 at 334.

   [45](1897) 18 NSWLR (L) 282.

   [46](1897) 18 NSWLR (L) 282 at 288‑289.

   [47]Wade and Forsyth, Administrative Law, 7th ed (1994) at 627.

9. The course of development in the case law since federation shows that there was force in the statement made in 1931, but with reference to the nineteenth century cases, as follows[48]:

   "Some principles early became so universally observed, so characteristic of all curial methods, that they became implied conditions of regularity in all judicial proceedings.[49]  The ordinary right of tribunals to regulate their own practice does not extend to abrogation of these principles, which only statute can make inapplicable.  Disregard of them will always be error, whatever the circumstances and whatever the cursus curiae." (footnote partially omitted)

   [48]Gordon, "The Observance of Law as a Condition of Jurisdiction", (1931) 47 Law Quarterly Review 386 at 396.

   [49]It is now doubtful whether there are more than two invariable conditions of regularity:  (1) that a tribunal shall be disinterested, (2) that the audi alteram partem principle shall be observed.  The House of Lords in Local Government Board v Arlidge [1915] AC 120, negatived a number of supposed invariable conditions suggested in the Court of Appeal, [1914] 1 KB 160. Similarly, in Board of Education v Rice [1911] AC 179, the House of Lords, in affirming the Court of Appeal on one narrow ground, discountenanced many extravagant dicta of the Lords Justices … Lord Loreburn ([1911] AC 179 at 182) mentions obiter as the invariable duties of a tribunal that it 'must act in good faith and listen fairly to both sides.'  …

10. In Fairmount Investments Ltd v Secretary of State for the Environment[50], Lord Russell of Killowen (with whose speech Lord Diplock, Lord Simon of Glaisdale and Lord Edmund-Davies agreed) had to consider a statute empowering the English High Court to quash a compulsory purchase order if satisfied that the order was not within the statutory power or that the interests of the applicant had been substantially prejudiced by non-compliance with its requirements.  His Lordship said[51]:

    "There was a certain amount of discussion before your Lordships on the significance and applicability of the phrase 'may quash' and on the difference between the phrase 'not within the powers of this Act' and 'the interests of the applicant have been substantially prejudiced by any requirement of this Act not having been complied with'. In my view the instant appeal does not require discussion of these points: for I am satisfied that if the true conclusion is that the course which events followed resulted in that degree of unfairness to Fairmount that is commonly referred to as a departure from the principles of natural justice it may equally be said that the order is not within the powers of the Act and that a requirement of the Act has not been complied with. For it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles."

    This involved (as Lord Diplock later indicated in Attorney-General v Ryan[52]) acceptance of an approach taken long before by Lord Selborne in Spackman[53], and was repeated in the leading English texts[54].

    [50][1976] 1 WLR 1255; [1976] 2 All ER 865.

    [51][1976] 1 WLR 1255 at 1263; [1976] 2 All ER 865 at 871‑872.

    [52][1980] AC 718 at 730.

    [53](1885) 10 App Cas 229 at 240.

    [54]De Smith's Judicial Review of Administrative Action, 4th ed (1980) at 244; Wade and Forsyth, Administrative Law, 7th ed (1994) at 465.  See also R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800 at 809‑810.

11. On various occasions it has been assumed that prohibition under s 75(v) issues in respect of failure to observe the rules of natural justice[55].  In Abebe v The Commonwealth[56], Gaudron J left open the question whether procedural fairness is to be seen as a common law duty or an implication from statute.  Her Honour referred to the support for the first view by Mason J in Kioa v West[57] and that for the second view by Brennan J in the same case[58].

    [55]See, for example, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116‑119; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, 267; Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588 at 591‑592.

    [56](1999) 197 CLR 510 at 553 [112].

    [57](1985) 159 CLR 550 at 584.

    [58](1985) 159 CLR 550 at 615.

12. In Kioa, Brennan J described the rule as an implication to be drawn from legislation conferring decision-making authority, the implication being that "observance of the principles of natural justice conditions the exercise of [a statutory power to affect rights and interests]"[59].  His Honour developed these
    views in later cases[60] and with some support by Deane J in Haoucher v Minister for Immigration and Ethnic Affairs[61].  In Annetts v McCann, Brennan J said[62]:

    "[T]he common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power.  This is the foundation and scope of the principles of natural justice.  The common law confers no jurisdiction to review an exercise of power by a repository when the power has been exercised or is to be exercised in conformity with the statute which creates and confers the power.  …

    When a writ of prohibition or an injunction is sought to restrain the exercise of a power, the applicant must show that there is a failure to satisfy some condition governing the proposed exercise of the power; for example, that the repository of the power has failed to accord natural justice to a person whose interests are liable to be affected adversely by the proposed exercise."

    [59](1985) 159 CLR 550 at 615.

    [60]These include Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 40 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 591.

    [61](1990) 169 CLR 648 at 652.

    [62](1990) 170 CLR 596 at 604‑605. It is immaterial for present purposes that Brennan J dissented in that case.

13. The reasoning of Brennan J in these judgments is consistent with the proposition respecting "Wednesbury unreasonableness" – which Gummow J adopted in Minister for Immigration and Multicultural Affairs v Eshetu[63] – stated by Brennan CJ in Kruger v The Commonwealth[64]. This is that, "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised". This reasoning should be accepted with respect to the remedy of prohibition provided for in s 75(v) of the Constitution. It represents the development of legal thought which began before federation and accommodates s 75(v) to that development.

    [63](1999) 197 CLR 611 at 650 [126].

    [64](1997) 190 CLR 1 at 36.

14. It follows that, if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution.

15. Different considerations arise where the Commonwealth officer is a member of a federal court. There, procedural fairness is a concomitant of the vesting of the judicial power of the Commonwealth in that federal court and s 75(v) operates to maintain s 71 of the Constitution. Again, where the officer of the Commonwealth executes an executive power, not a power conferred by statute, a question will arise whether that element of the executive power of the Commonwealth found in Ch II of the Constitution includes a requirement of procedural fairness[65]. It is unnecessary to pursue that question further in the present case, but if that requirement is included then prohibition will lie to enforce observance of the Constitution itself. Nor does any question arise here of attempted abrogation by statute of any requirement of procedural fairness. Rather, s 476(2)(a), in limiting the grounds which may be taken in the Federal Court, assumes the existence of the requirement in respect of decisions under the Act which include those of the Tribunal[66].

    [65]See Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 278, 280‑281, 302‑303; The Commonwealth v Northern Land Council (1993) 176 CLR 604.

    [66]See s 475(1)(b).

    Prohibition and discretion

16. In the nineteenth century English decisions, there was much debate as to whether, although it was not a writ of course, prohibition was to be granted as a matter of right and was not to be denied on discretionary grounds[67].  Debate turned partly on the question of significance to be attached to the identity and interest of the prosecutor and partly on the doctrinal basis founding the issue of the writ.  In Chambers v Green[68], Sir George Jessel MR, drawing support from Willes J (delivering for himself, Blackburn J, Pigott B, Shee J and Smith J answers to questions put by the House of Lords in Mayor, &c, of London v Cox[69]), distinguished the position of a prosecutor who is a stranger to the proceeding of the inferior court or tribunal.  Where the prosecutor was a stranger, there was a discretion to refuse prohibition, whilst, as Willes J had also emphasised[70], where the prosecutor was a party to the proceeding in the inferior court or tribunal, there was no discretion, and the view of earlier judges including Holt CJ that a discretion existed was incorrect.  The rationale given by Jessel MR for the distinction was the unfairness involved where neither party disputed the jurisdiction but a third party did so.  Awareness of the distinction drawn in the English decisions appears to underline the dictum in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd[71]:

    "[I]t must be borne in mind that, subject to certain limitations not here material, while prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority."

    [67]Sir Thomas Bingham, "Should Public Law Remedies be Discretionary?", [1991] Public Law 64 at 66.

    [68](1875) LR 20 Eq 552 at 555. Prohibition issued out of Chancery, but the practice differed from that at common law: Mayor, &c, of London v Cox (1867) LR 2 HL 239 at 290‑291.

    [69](1867) LR 2 HL 239 at 279‑280.

    [70](1867) LR 2 HL 239 at 278.

    [71](1953) 88 CLR 100 at 118‑119.

1. By the time of federation in this country, the view was taken by the New York Court of Appeals that[72]:

   [72]The People ex rel Adams v Westbrook 89 NY 152 at 154‑155 (1882). See also High, "A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto, and Prohibition", (1874), Art 765. Westbrook was applied by the New York Court of Appeals in The People ex rel Livingston v Wyatt 79 NE 330 at 334 (1906) and The People ex rel Cuvillier v Hagarty 144 NE 917 (1924).  Cardozo J was a party to Hagarty.  In federal jurisdiction, power was conferred by statute to issue the "extraordinary writs", including prohibition, to the District Courts in aid of appellate jurisdiction, but, as Harlan J put it in delivering the opinion of the Supreme Court, "[t]he power to issue them is discretionary and it is sparingly exercised":  Parr v United States 351 US 513 at 520 (1956).

   "[t]he writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity, and not for grievances which may be redressed by ordinary proceedings at law or in equity, or by appeal, and it is not demandable as matter of right, but of sound judicial discretion, to be granted or withheld, according to the circumstances of each particular case".

   The contrary view in England that, even where the prosecutor was a stranger, there was no discretion, was attributed by the New York Court of Appeals to the vigour with which the Court of King's Bench had carried on its struggle with the admiralty courts[73].  Be that as it may, this view, one contrary to that of Jessel MR and Willes J, held sway well into the nineteenth century in the Court of Common Pleas and had Brett J as its particular champion.  In Worthington v Jeffries[74], his Lordship declared that, in all cases, the writ issued upon the same ground.  This was[75]:

   "not whether the individual suitor has or has not suffered damage, but is, whether the royal prerogative has been encroached upon by reason of the prescribed order of administration of justice having been disobeyed.  If this were not so, it seems difficult to understand why a stranger may interfere at all."

   Later, in Ellis v Fleming[76], Brett J discountenanced the judgment of Jessel MR in Chambers v Green[77].  Moreover, in Mayor, &c, of London v Cox[78], Willes J himself had stated[79]:

   "All lawful jurisdiction is derived from and must be traced to the royal authority.  Any exercise, however fitting it may appear, of jurisdiction not so authorized, is an usurpation of the prerogative, and a resort to force unwarranted by law."

   Plainly that mode of reasoning was inapplicable in the United States, given the nature of government adopted in that country and the conclusion, expressed before the adoption of the Australian Constitution, that, in the United States, the writs had necessarily been stripped of their prerogative features[80].

   [73]The People ex rel Adams v Westbrook 89 NY 152 at 155‑156 (1882).

   [74](1875) LR 10 CP 379.

   [75](1875) LR 10 CP 379 at 382.

   [76](1876) 1 CPD 237 at 240.

   [77](1875) LR 20 Eq 552.

   [78](1867) LR 2 HL 239.

   [79](1867) LR 2 HL 239 at 254.

   [80]See High, "A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto, and Prohibition", (1874), Arts 3‑5.

2. The nature and structure of the Constitution indicates that the same must be true of the remedies of "prohibition" and "Mandamus" identified in s 75(v). The legislative power of the Commonwealth is "vested" in the Parliament consisting of the Crown, the Senate and the House of Representatives (s 1). The executive power of the Commonwealth is "vested" in the Crown and is exercisable by the Governor-General as the Crown's representative (s 61)[81]. On the other hand, the judicial power of the Commonwealth is "vested" by s 71 in this Court and in such other federal courts as the Parliament creates and in such other courts as the Parliament invests with federal jurisdiction. There is no vesting in the Crown of any element of the judicial power of the Commonwealth. Indeed, an important exercise of the judicial power of the Commonwealth is its utility in controlling actions by the executive branch of government beyond the exercise of the executive power vested by s 61. Thus, to adapt to this country the statement by Willes J in Mayor, &c, of London v Cox[82], all lawful jurisdiction is derived from and must be traced to Ch III of the Constitution. The remedies specified in s 75(v) are directed to observance by officers of the Commonwealth of the Constitution and the laws in force thereunder.

   [81]See Sue v Hill (1999) 73 ALJR 1016 at 1030‑1032 [67]-[82]; 163 ALR 648 at 667‑671.

   [82](1867) LR 2 HL 239 at 254.

3. Nevertheless, in The Tramways Case [No 1][83], Griffith CJ set out a passage from the judgment of Brett J in Worthington v Jeffries[84] in which his Lordship had founded the issue of prohibition as of right upon an encroachment upon the law of prerogative.  The context in which Griffith CJ did so is important.  One question in The Tramways Case [No 1] was whether jurisdiction of this Court to issue prohibition to a tribunal comprising Commonwealth officers which acted in excess of jurisdiction was in its nature appellate or (as the Court held) original jurisdiction. If the former, then it would have been subject to the power of the Parliament in s 73 of the Constitution to prescribe exceptions and regulations. Worthington v Jeffries was referred to in support of the unexceptionable proposition that the jurisdiction of the superior courts in England to grant a common law writ of prohibition was original and not appellate jurisdiction.

   [83](1914) 18 CLR 54 at 60.

   [84](1875) LR 10 CP 379 at 382.

4. Later, in R v Federal Court of Australia; Ex parte WA National Football League[85], Barwick CJ also referred to the same passage in the judgment of Brett J in Worthington v Jeffries. Barwick CJ, as indicated earlier in these reasons, treated what his Lordship had said as a "presently relevant" aspect of the law appertaining to the grant of prohibition by the King's Bench which was imported into the jurisdiction of this Court by the use of the word "prohibition" in s 75(v). In our view, that starting point should not be accepted. However, in WA National Football League, Barwick CJ also advanced the proposition that the grant of prohibition under s 75(v) is discretionary if sought by a stranger or if the jurisdiction does not appear on the face of the proceedings but semble that otherwise the writ is as of right. In his discussion of this point, his Honour quoted[86] with approval the judgment of Willes J in Mayor, &c, of London vCox[87].

   [85](1979) 143 CLR 190 at 201.

   [86](1979) 143 CLR 190 at 201‑202.

   [87](1867) LR 2 HL 239 at 283.

5. To treat what Willes J said as applicable to s 75(v) is not to challenge the line of authority which indicates, in some circumstances, that a stranger, without a relevant legal interest, may have standing as a prosecutor in a matter in which prohibition is sought under s 75(v)[88].  The point in issue here concerns the existence of a discretion in a case such as the present (where the prosecutor is not a stranger) to decline the issue of prohibition.

   [88]See Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 263 [40]; and see, generally, Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 74 ALJR 604; 169 ALR 616.

6. Where the prosecutor is a stranger, the existence of a discretion should be regarded as settled by what was said in Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association[89] by Mason, Brennan and Dawson JJ, who comprised the Court in that case.  There, the prosecutor was a stranger to any demarcation dispute between the relevant union parties in an application for variation of an award by the Conciliation and Arbitration Commission.  In those circumstances their Honours held that it would be "inappropriate" to grant prohibition.  They prefaced that conclusion by saying[90]:

   "At common law there has been some controversy as to the existence and extent of the Court's discretion to refuse prohibition when the writ is sought by a stranger to the proceedings before the inferior court, but the resolution of the controversy has not been thought to determine the existence of this Court's discretion in exercising its jurisdiction under s 75(v) to grant or refuse prohibition to the Commission. The tendency of the Court has been to assume the existence of a discretion to refuse the remedy when sought by a stranger though a case in which it would have been right to refuse the remedy has not arisen hitherto".

   There remains the class of case in which the applicant for prohibition is not a stranger in the relevant sense.  Here, it should be observed that the proposition that in respect of activity in excess of jurisdiction prohibition goes as of right cannot be accepted at its face value.  For example, it is well settled that a court may discharge an order nisi and refuse to proceed further with an examination of the merits where the prosecutor obtains the order nisi upon material which misled and deceived the court[91].

   [89](1986) 60 ALJR 588.

   [90](1986) 60 ALJR 588 at 594.

   [91]R v Kensington Income Tax Commissioners.  Ex parte Princess Edmond de Polignac [1917] 1 KB 486.

7. Particular considerations arise where the officers of the Commonwealth against whom prohibition is sought are members of a federal court.  In R v Gray; Ex parte Marsh, Mason J said[92]:

   "It has been said that, although prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority:  Australian Stevedoring Industry Board[93].  However, recent judgments in this Court support the proposition that the court has a discretion to refuse prohibition where it is sought against a superior court at least when:  (a) the prosecutor has a right of appeal; and (b) there is no constitutional question involved".

   Further, prohibition may be refused by this Court where the administrative structure incorporates provision for an internal "appeal" and, whilst there was a denial of procedural fairness at the first stage, an appeal was taken and there was a full and fair hearing on that appeal.  The judgment of Mason J in R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation[94] is authority that, in such a case, prohibition to the first decision-maker may be refused on the footing that any denial of natural justice at that level has become irrelevant.  For that conclusion, Mason J cited in support the decision of the Privy Council in Calvin v Carr[95].

   [92](1985) 157 CLR 351 at 375.

   [93](1953) 88 CLR 100 at 118‑119.

   [94](1981) 147 CLR 471 at 484‑485. Murphy J (at 489), Aickin J (at 493) and Wilson J (at 494) agreed with the judgment of Mason J in this respect.

   [95][1980] AC 574 at 593.

8. The position respecting refusal of prohibition was expressed in more general terms by Gibbs CJ in R v Ross-Jones; Ex parte Green[96].  After referring to various authorities, including Australian Stevedoring Industry Board[97] (in which the expression "in excess of its authority" was used with reference to the activities of tribunals), Gibbs CJ said[98]:

   "If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course."

   [96](1984) 156 CLR 185.

   [97](1953) 88 CLR 100 at 118‑119.

   [98](1984) 156 CLR 185 at 194.

9. That statement should be accepted as the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution. The expression "want or excess of jurisdiction" in that passage includes, in the sense explained earlier in these reasons, the consequence of failure to observe the rules of natural justice in the exercise of statutory authority.

10. The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions"[99].  The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction.  The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.  The denial of prohibition by reason of an adverse answer to the second question does not necessarily deny to the prosecutor the opportunity to vindicate any private law rights in appropriate proceedings.  For example, damages or equitable relief may be sought for
    

    [99]De Smith's Judicial Review of Administrative Action, 4th ed (1980) at 422.

    [100]Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 558. See Craig, Administrative Law, 3rd ed (1994) at 613‑642.

    [101]Wade and Forsyth, Administrative Law, 7th ed (1994) at 282‑283; cf Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 452‑453; Craig, Administrative Law, 3rd ed (1994) at 676‑677.

    tortious injury to private or individual rights[100].  In such actions, the parties are likely to be different and, in any event, the doctrine of res judicata may not be applicable[101].

11. The text and structure of Ch III do not suggest that prohibition should occupy any special position among the constitutional remedies provided in s 75(v). The other two remedies specified there are attended by discretion. This is "well settled" with respect to mandamus[102].  It is a remedy which does not go either as of right or as of course.  The same certainly is true of the injunction where, as here, it is a public law remedy[103].  In Annetts v McCann[104], Brennan J pointed out that a writ of prohibition or an injunction may be sought to restrain the exercise of a power where natural justice has not been accorded, this being "a failure to satisfy some condition governing the proposed exercise of the power".  In other cases, upon analysis, an injunction with the same effect as prohibition quousque may be the appropriate remedy that is sought[105].

    [102]R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504 at 522. See also R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, 407‑409.

    [103]See Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 157‑158 [57]-[58].

    [104](1990) 170 CLR 596 at 604‑605.

    [105]R v MacKellar; Ex parte Ratu (1977) 137 CLR 461 at 474‑475.

12. No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution[106].  The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission.  Her Honour said[107]:

    "Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers.  It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise.  The rule of law requires no less." (footnote omitted)

    [106]See, for example, Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 639, 651‑655.

    [107](2000) 199 CLR 135 at 157 [56].

13. Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd.  Their Honours said[108]:

    "For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made.  The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."

    [108](1949) 78 CLR 389 at 400.

14. When dealing apparently with certiorari and declarations, Lord Denning MR in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry said[109]:

    "He may be debarred from relief if he has acquiesced in the invalidity or has waived it.  If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing[110].  If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief[111]."

    The reference by the Master of the Rolls to the refusal of relief because the applicant in fact suffered no injustice requires further attention.  There are authorities which suggest that, where the complaint is one of denial of procedural fairness, the nature of the alleged irregularity may be a matter going to discretion to deny a remedy on the footing that, in any event, no different result would have been reached[112].

    [109][1975] AC 295 at 320 (CA); affd [1975] AC 329.

    [110]See R v Aston University Senate, Ex parte Roffey [1969] 2 QB 538.

    [111]See Glynn v Keele University [1971] 1 WLR 487; [1971] 2 All ER 89 and Ward v Bradford Corporation (1971) 70 LGR 27.

    [112]Wislang v Medical Practitioners Disciplinary Committee [1974] 1 NZLR 29 at 42; Cinnamond v British Airports Authority [1980] 1 WLR 582 at 593; [1980] 2 All ER 368 at 376-377.

15. It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, "[t]he court does not act in vain"[113].  For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse[114].  Or the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor[115].  Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it.  In such a situation, the reasoning in Ainsworth v Criminal Justice Commission[116], where the remedy refused was certiorari, indicates that prohibition will not lie[117].

    [113]Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595; [1971] 2 All ER 1278 at 1294.

    [114]Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228; Wade and Forsyth, Administrative Law, 7th ed (1994) at 528.

    [115]See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.

    [116](1992) 175 CLR 564 at 580‑581.

    [117]Abebe v The Commonwealth (1999) 197 CLR 510 at 553‑554 [113].

1. However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).

2. Cases said to turn upon "trivial" breaches are often better understood on other grounds.  In particular, it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case.  The point is developed in particular in the judgments of Deane J in Kioa v West[118] and Haoucher v Minister for Immigration and Ethnic Affairs[119].

   [118](1985) 159 CLR 550 at 632‑633.

   [119](1990) 169 CLR 648 at 652‑653.

3. In the present case, the Act laid down a particular framework for the particular conduct by the Tribunal of its review of the decision of the delegate of the Minister. The Tribunal was bound by par (a) of s 425(1) to give the prosecutor an opportunity to appear before it to give evidence. The Tribunal was empowered to require the prosecutor to give evidence on oath or affirmation (s 427(3)(c)) and he gave sworn testimony on two occasions. However, he had not been entitled to be represented by any other person (s 427(6)). The cogency of the prosecutor's evidence was of greatest importance for the evaluation of his claims respecting a well-founded fear of persecution.

4. The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making[120].  It is in this fashion that the complaints made by the prosecutor in the present case are appropriately evaluated.  Before doing so, it is necessary to return briefly to the history of the matter.

   [120]See the discussion by Brennan J in R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation (1981) 147 CLR 471 at 499‑501.

   The proceedings before the Tribunal and the Federal Court

5. The jurisdiction of the Tribunal had been attracted in the first instance by an application made on 4 October 1996 to review the decision of a delegate of the Minister dated 2 October 1996 that the prosecutor did not meet a prescribed criterion for the grant of a protection visa. The decision of the delegate was conveyed in a document of 16 pages which contained detailed findings. The jurisdiction of the Federal Court was attracted by the filing by the prosecutor on 15 January 1997 of an application for an order of review under Pt 8 of the Act of the first decision of the Tribunal. On the top of the first page of the application there appeared in the handwriting of the prosecutor the statement:

   "Total 21 PAGES INCLUDING THIS PAGE

   PAGES 1‑5 COVER + 16 pages submission".

   These 21 pages are included in the materials before the Court on this present application.

6. On 18 December 1997, the Full Court of the Federal Court ("the first Full Court") allowed an appeal from orders of Beaumont J.  His Honour had dismissed the application.  The effect of the orders of the first Full Court was to allow the application for review, to set aside the first decision of the Tribunal, and to remit the matter to the Tribunal to be determined in accordance with law, with or without the hearing of fresh evidence as the second Tribunal should determine.

7. Power to make such orders was given to the Federal Court by pars (a) and (b) of s 481(1) of the Act. The authority of the Tribunal derived primarily from that section. The provisions thereof to which we have referred impliedly conferred upon the Tribunal at the second hearing the authority[121] to redetermine the application which the prosecutor had made on 4 October 1996, and to do so with or without the hearing of fresh evidence, and otherwise in accordance with the procedures set out in Div 3 (ss 420‑422), Div 4 (ss 423‑429) and Div 5 (ss 430-431) of Pt 7 of the Act.

   [121]Attorney-General (Cth) v Oates (1999) 198 CLR 162 at 171‑172 [16].

8. At the second Tribunal hearing on 20 March 1998, the prosecutor again gave sworn evidence. The Tribunal was differently constituted for the second hearing. A new file was opened and given the number N98/21291. The file at the first Tribunal hearing was number N96/12272. Section 418 of the Act provided for the Secretary to the Minister's Department to give to the Registrar of the Tribunal certain documents relevant to the review. There is no such statutory provision respecting the Federal Court file. However, appeal papers had been prepared for the first Full Court and an appeal book assembled. The index to that appeal book is in evidence on the present application. This shows that the application for review filed on 15 January 1997, and thus the written submissions of 16 pages, was reproduced. So also was an amended application filed on 3 March 1997, including an attachment of 16 pages.

9. After the prosecutor had been sworn on 20 March 1998, the member constituting the Tribunal at the second hearing told the prosecutor that she had read everything in "all of those files", being identified in the sentence:

   "I've got [your] Department of Immigration file and your old Refugee Tribunal file and your new Refugee Tribunal file plus all of the Federal Court papers."

   At the second hearing, the prosecutor gave oral evidence concerning his association with his former colleague, Ali Tehrani.  The Tribunal on 3 April 1998 affirmed the decision not to grant to the prosecutor a protection visa.  The position respecting Ali Tehrani then assumed considerable importance on the consequent application for review to the Federal Court.  This was heard by Branson J and, on 17 December 1998, her Honour affirmed the decision of the second Tribunal.  On 3 June 1999, the Full Court ("the second Full Court") dismissed an appeal against her Honour's orders.  The Full Court gave judgment after this Court's decision in Minister for Immigration and Multicultural Affairs v Eshetu[122].  The Full Court noted that the effect of the decision in Eshetu was that par (a) of s 476(1) did not empower the Federal Court to review a decision of the Tribunal on the basis that it had failed to comply with procedures mandated by the Act. This was because that obligation to afford natural justice was not part of the statutory requirement in par (b) of s 420(2) that the Tribunal, in reviewing a decision, "must act according to substantial justice".

   [122](1999) 197 CLR 611.

10. However, at the time the matter was before Branson J, it was accepted that it was open to the Federal Court to deal with matters of natural justice.  Her Honour did so, with particular reference to the matter concerning Ali Tehrani.  Branson J's findings appear in the following passage:

    "The [prosecutor] gave evidence at the second [Tribunal] hearing that he and a former colleague of his, Ali Tehrani, had an agreement that if … Mr Tehrani experienced any problems with the Komiteh, Mr Tehrani should try to save himself by disclosing all the information in his possession about the [prosecutor], as the [prosecutor] would be safely overseas.  The [prosecutor] had not given this evidence either to the Department or at the [first Tribunal hearing].  However, he had made a written statement to this effect in a document dated 14 January 1997 which he apparently provided by facsimile transmission to the Federal Court following his appeal to this Court from the [first Tribunal decision].  The [prosecutor] also sent three further documents to the Federal Court.  All four of the documents sent by the [prosecutor] to the Court were reproduced in the Appeal Book produced for the purpose of the hearing by the Full Court of the appeal against the decision of Beaumont J.  There is nothing before me to suggest that documents provided to the Federal Court in this way would ordinarily be expected to come to the attention of the [second Tribunal].  There is nothing before me to suggest that these documents did come to the attention of the [second Tribunal].  Nor has the [prosecutor] placed any evidence before the Court on the issues of whether he was in fact misled by the assurance of the member who constituted the [second Tribunal] that she had read all of his statements and, assuming that he was misled, what he would have done had he been aware that certain documents prepared by him were not available to the [second Tribunal].  It seems likely that the [second Tribunal] was unaware that the [prosecutor] had first made a statement in January 1997 which asserted the existence of the agreement between him and Mr Tehrani.  However, the reasons of the [second Tribunal] indicate that the [second Tribunal] placed importance on the fact that no evidence of such an agreement was given at [the hearing by the first Tribunal] (see the reasons of the [second Tribunal] at p 10).  Nothing in the documents sent by the [prosecutor] to the Federal Court altered this situation." (emphasis added)

    The relevant passage in the reasons of the second Tribunal is as follows:

    "The [prosecutor] claims that before he left Iran he told Ali that if ever he experiences any problems with the Komiteh he should try to save himself by disclosing all of the information he knows about the [prosecutor].  The [prosecutor] told him that he would be safe overseas and so it would be alright to pass this information on.  The Tribunal notes that, prior to the second Tribunal hearing, the [prosecutor] had never raised the claim that he and Ali had an agreement that Ali would try to save himself by passing on information about the [prosecutor] if it became necessary." (emphasis added)

11. In a later passage in the reasons of the second Tribunal, the following appears:

    "The [prosecutor] told the Tribunal about a real estate transaction in which his colleague Ali Tehrani had been involved after the [prosecutor's] departure for Australia which he claims led to Ali's arrest and execution.  The [prosecutor] had never raised this claim prior to the second Tribunal hearing.  He claims that the information was given to him by other real estate colleagues, although he did not claim this in prior submissions or hearings.  The Tribunal finds that the [prosecutor] concocted this evidence and places no weight on it.

    The [prosecutor] gave evidence that he felt that Ali Tehrani would have passed on information about the [prosecutor's] activities to the authorities.  He claims that he and Ali had an 'agreement' that, if Ali were to be detained, he would tell the authorities about the [prosecutor's] past activities in order to save himself.  The Tribunal does not accept this evidence.  Prior to the second Tribunal hearing, the [prosecutor] had never claimed that he and Ali had any sort of agreement.  This claim is purely self-serving.

    …

    The Tribunal finds that there is no connection between the [prosecutor] and the alleged execution of Ali Tehrani, nor any consequences which may flow to the [prosecutor].  However, even if the Tribunal accepts that Ali Tehrani did inform the authorities about the [prosecutor's] involvement in the sale of properties for the Shah and his associates, the Tribunal has already found … that the [prosecutor] does not have a well-founded fear of persecution for reasons of this or any of his past activities.  Consequently, the Tribunal finds that the [prosecutor] does not have a well-founded fear of persecution for reasons of his association with Ali Tehrani." (emphasis added)

    The prosecutor's case

12. The substance of the prosecutor's complaint is that (i) the references by the second Tribunal to the absence of prior claims by the prosecutor respecting the agreement with Ali Tehrani is factually wrong; (ii) this is because reference was made respecting this matter by the prosecutor in one or more of the documents sent by the prosecutor to the Federal Court and which were reproduced in the appeal book for use by the first Full Court; (iii) the prosecutor was diverted from setting matters straight at his hearing before the second Tribunal because he understood the opening statement by the second Tribunal, which we have set out above, as an assertion by the second Tribunal member that she had read those materials as part of the Federal Court materials; (iv) in particular, his evidence in this Court, which was unchallenged, is that he did not elaborate at the hearing before the second Tribunal on these materials because he believed the member had read them and taken them into account; (v) had the second Tribunal been apprised of the true situation respecting the content of the material and its chronology, the second Tribunal would have had to take it into account before making the adverse finding as to the prosecutor's credit, respecting recent invention; and (vi) further, the second Tribunal denied the prosecutor procedural fairness by not putting to him its concern with recent invention before making an adverse finding based upon it.

13. The written submissions to this Court by the second respondent included the following:

    "1.4The Prosecutor made no mention to the [first] Tribunal of an agreement with Ali that Ali would incriminate the Prosecutor if Ali was caught in an effort to save his (Ali's) life (the agreement claim).  This new claim appears to have first been made in material dated 14 January 1997 submitted to the Federal Court after the [first] Tribunal decision and in support of the application for review.  It was repeated thereafter in other material sent by facsimile to the Federal Court by the Prosecutor at different times.

    1.5The [second] Tribunal held an oral hearing on 20 March 1998.  The member told the Prosecutor she had read all of the Federal Court papers.  It was conceded before the Federal Court by the Second Respondent, and is again conceded, that the [second] Tribunal did not have before it the materials referred to in para 1.4 above."

14. There was discussion in the course of the oral submissions for the Minister of what was involved in this concession.  It was not clear, for example, whether what was meant was that there had been some breakdown in established administrative procedures between the Federal Court and the second Tribunal.  It was said by counsel for the second respondent that the concession meant that the Federal Court's file "is not ordinarily before the [Tribunal]" so that, in the present case, there has been "no particular glitch".  That left for speculation what was meant by the member constituting the Tribunal at the second hearing when she asserted that she had read "all of the Federal Court papers".  It was suggested by counsel, again without evidence, that this meant the member had before her the judgments delivered in the Federal Court and that she may or may not have had the application for review filed in the Federal Court on 15 January 1997.  Then it was said that, in any event, the 16 page submission referred to on the front page of that application had not been before the second Tribunal.

15. It may be that what was meant by the member in her opening remarks was that she had before her a copy of the appeal book prepared for the first Full Court and that it was this that she had read, not any unassembled court file from the Federal Court.  The appeal book, as Branson J pointed out, reproduced all four of the documents now relied upon by the prosecutor as his communications to the Federal Court.

16. Nevertheless, on this application in the original jurisdiction of the Court, it was for the parties to provide it with evidence in proper form to establish what in fact was the material before the Tribunal at the second hearing.  Rather than doing so, the Minister relies upon the awkwardly expressed concession set out above.  We therefore proceed on the footing that the four documents were not among material which constituted the record before the second Tribunal upon which it made its decision.

17. However, when read as a whole and in context, the remarks made by the second Tribunal respecting recent invention are directed not to the intervening litigation in the Federal Court, but to a comparison between the record before the first Tribunal and the second Tribunal.  After all, the proceedings in the Federal Court had been for administrative review upon a record constituted by that which had been before the first Tribunal.  The relevant evidence was that tendered to the first Tribunal, in particular the prosecutor's oral evidence.

18. It is here, nevertheless, that the real difficulty for the Minister's case arises. The assessment by the second Tribunal of the credit of the prosecutor was an important matter. There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial. The requirement of procedural fairness did not require the Tribunal when, pursuant to par (a) of s 425(1), it gave the prosecutor the opportunity to appear before it to give evidence, to treat what transpired "as though it were a trial in a court of law"[123].

    [123]National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 315.

19. However, the practical content in the present case of the requirement for procedural fairness is to be determined bearing in mind the relationship between the hearings before the first Tribunal and the second Tribunal, the giving by the prosecutor of sworn evidence on both occasions, and the critical and obvious importance of any adverse finding as to his credit.

20. The central issue to which the prosecutor's oral evidence was directed on both occasions was his claim to refugee status involving his well-founded fear of persecution for a Convention reason.  The circumstances here were such as to make applicable what, in Mahon v Air New Zealand Ltd[124], Lord Diplock identified as one of the rules of natural justice.  His Lordship said[125]:

    "The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result." (original emphasis)

    [124][1984] AC 808.

    [125][1984] AC 808 at 821.

21. It is true that, in the present case, the second Tribunal said that, even if it had accepted that Ali Tehrani had informed the authorities about the involvement of the prosecutor in the sale of properties for the Shah and his associates, the second Tribunal already in its reasons had found that the prosecutor did not have a well-founded fear of persecution for reasons of any of his past activities.  That finding had been expressed as follows:

    "The Tribunal finds that because it is so clear that the [prosecutor] was driven by financial considerations and not by political motivations there is no possibility that his actions in facilitating the sale of properties owned by the Shah and his associates would be seen as political.  The [prosecutor] has shown himself to be an opportunistic businessman who will do almost anything to earn large profits.  There is no evidence before the Tribunal, apart from the [prosecutor's] own claims, to suggest that real estate agents, or any person, caught facilitating sales of property for the Shah or his associates for profit are imputed with a political opinion in Iran.  The Tribunal finds, therefore that there is only a very remote chance that the [prosecutor] would be imputed with a political opinion in support of the Shah." (emphasis added)

1. In these circumstances it should be accepted that prohibition may issue to an officer of the Commonwealth if there has been, or will be, a denial of procedural fairness. If so to hold requires the development of the common law then that should be done. Not only would this be entirely consistent with the text and the structure of the Constitution, it would further the evident constitutional purpose behind s 75(v).

2. The better view may be that the conclusion I have expressed represents no development of common law principles. The power to grant prohibition for denial of procedural fairness, in cases within s 75(v) jurisdiction, has often been assumed[205].  As Gaudron and Gummow JJ point out in their joint reasons, there are several statements to be found in both 19th and 20th century decisions in England and Australia suggesting that prohibition will go in at least some cases of denial of procedural fairness.  In stating the opinion of the judges in answer to the questions posed by the House of Lords in the well‑known case of Dimes v Grand Junction Canal[206], Parke B entertained no doubt about the matter, saying that had the proceeding then in question been a proceeding in an inferior court, "prohibition would be granted … upon an allegation that the presiding Judge of the court was interested in the suit"[207]. 

   [205]See, for example, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116‑119; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, 267; Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588 at 592.

   [206](1852) 3 HLC 759 [10 ER 301].

   [207](1852) 3 HLC 759 at 785 [10 ER 301 at 312].

3. I agree with Gaudron and Gummow JJ, for the reasons they give, that prohibition does not lie as of right but is discretionary.  I agree that, for the reasons their Honours give, the prosecutor was denied procedural fairness and that, again for the reasons they give, the prosecutor should not be refused relief on account of delay.  Orders should be made in the form proposed by Gaudron and Gummow JJ.

4. CALLINAN J.   The issue in this case is whether this Court should grant prerogative relief to the prosecutor, by reason of his reliance upon an inadvertently made, erroneous statement by a Tribunal, at the inception of a hearing, that the Tribunal had read some relevant materials which in fact the Tribunal did not have and had not seen.

   The Facts

5. A Refugee Review Tribunal ("the first Tribunal") which received his application for a protection visa summarized the prosecutor's evidence to the Tribunal in this way.  The prosecutor was born on 16 March 1942 in Iran.  Between 1969 and 1978 he studied in London, Munich and Paris.  He returned to Iran in 1973.  He claimed that he had worked for the Savak (the secret police of the Shah of Iran) for six months.  Subsequently he commenced a real estate business in that country.  The Shah was deposed in February 1979.  A high ranking military officer who was a cousin of the prosecutor's father and a member of the Shah's cabinet was executed by the new regime.

6. The prosecutor was thereafter involved in the illegal sale of property owned by the Shah and some of his supporters.

7. In about 1981 or 1982 he made substantial donations to an underground counter-revolutionary organisation, the Mujahideen-e-Khalq and helped to spread the views that it propounded.

8. Members of the Komiteh, an enforcement organ of the new regime, visited the prosecutor's premises on three occasions between 1990 and his departure from Iran, in search, seemingly, of documents that might disclose his involvement in the sale of properties of the Shah and his followers.  After the first visit the prosecutor concealed relevant documents in a safe place.  Following the second visit the Komiteh questioned him at the Komiteh station.

9. The prosecutor told the Tribunal that he had worked in cooperation with a school friend, Ali Tehrani, in selling property belonging to the Shah and his supporters.  He described this man as his best friend although they were in competition as real estate agents.  He said that they frequently pooled their resources to conduct their businesses and that they both became concerned when the Komiteh began to display interest in them in late 1990.   His evidence was that they discussed leaving Iran.  He told his friend that he too should leave the country.

10. The prosecutor said that he contacted his sister in about 1993 and that she told him that the Komiteh was looking for him.  He said that his sister informed him that she had been unable to find Ali Tehrani or make any contact with him.  The prosecutor said that he had learned that this man had been arrested for selling confiscated Royalist properties and had been executed by the Iranian authorities.  The prosecutor contended that he believes that the Komiteh would have found out about his involvement in the sales from questioning his friend. 

11. In response to a comment by the first Tribunal, to the prosecutor, that the Tribunal did not think any of the evidence pointed to a conclusion that the applicant's friend would have given his name to the Komiteh, or disclosed information about him, the prosecutor responded that he was sure his friend would have given information to the Komiteh about him as a means of trying to save himself:  that his friend would have done so because he would have thought the prosecutor to be safe having fled the country.  Accordingly Ali Tehrani would have been able to provide such information in order to protect himself.

12. It was common ground before the Tribunal that supporters of the Mujahideen-e-Khalq and the Shah when apprehended were imprisoned, and often tortured and executed.

13. No evidence was presented to the first Tribunal of any explicit agreement between the prosecutor and Ali Tehrani as to the latter's freedom to disclose the prosecutor's activities before he left Iran, to save his own skin, if he were apprehended by the Komiteh.  The prosecutor accepted that he would not have been given a passport to leave Iran in 1991 if he had been suspected of any illegal, covert activities.

14. The first Tribunal was not satisfied that there was a real chance that the authorities would have learned of any of the prosecutor's activities that might, from their perspective, justify persecuting the prosecutor, from an interrogation of his friend in 1992 or 1993.  The Tribunal concluded that the prosecutor did not have a well-founded fear of persecution and was not therefore entitled to a Protection Visa.

15. There are some further factual matters to which reference is required.  On 15 September 1991 the prosecutor married Mary Razi, an Australian citizen of Afghan ethnic origin.  An Islamic marriage celebration followed on 21 September 1991.  On 9 October 1991 the prosecutor made application for a Class BC Subclass 100 (Spouse) Visa.  On 13 August 1992 the prosecutor and his wife separated, and on 25 February 1993 a Spouse Visa was refused.  On 7 March 1994 a decree nisi for divorce was pronounced. 

16. The prosecutor perpetrated a violent crime against his former wife.  He was tried before Finlay J and a jury and convicted of malicious wounding, and sentenced to 34 months on 16 August 1995[208].  His application for a Protection Visa was made on 20 August 1996 and on his release from Long Bay Jail he was immediately transferred to Villawood Immigration Detention Centre.

    [208]R v Mansour Aala unreported, Supreme Court of New South Wales, 16 August 1995 per Finlay J.

17. The prosecutor then made an application to the Federal Court of Australia for an order of review of the decision of the Refugee Review Tribunal.  The prosecutor provided to the Federal Court handwritten documents numbering some 19, 21 and 32 pages respectively, of allegation, repetition of facts stated to the first Tribunal, complaints about the decision of the first Tribunal, and some facts not previously stated.  These documents were prepared without the benefit of any legal assistance.  That material contained these statements:

    "I advised Ali, try to get out of the country like me, before anything happened to you, but if something happen to you, try to disclosed information about me to the authorities, and protect yourself from any serious harm, because I will be out of the country and safe of any harm  and I will not come back to Iran in future.  It was accepted by Ali and he told me he will do it as I advise him."

18. It is necessary to say something about these documents.  They were not in the form of affidavits.  They were unsworn.  They contained some material that was objectionable in form and irrelevant to the issues.  It is not clear whether the second respondent was content to treat them as evidentiary, or indeed whether any reference was made to them at all in the hearing of the prosecutor's application to the Federal Court which was heard by Beaumont J.  These circumstances are unfortunate.  It would have been better if the status of these documents had been in some way defined or it was made clear that they should be rejected.  However, for reasons that will appear, this Court should regard the documents as documents which were relevantly before the Federal Court.

19. Beaumont J, in short reasons which need no further reference, rejected the prosecutor's application.

20. From this decision the prosecutor appealed to the Full Federal Court (Davies, Hill and Lehane JJ).  The Court upheld the prosecutor's appeal, by, in effect, conducting a review of the facts and holding that the first Tribunal had misdirected itself as to the legal test to be applied in assessing the prosecutor's assertions.  The decision of the Full Federal Court was given before the decisions of this Court in Abebe[209] and Eshetu[210].

    [209]Abebe v The Commonwealth (1999) 197 CLR 510.

    [210]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

21. The consequence of the decision of the Full Federal Court was another review before a differently constituted Refugee Review Tribunal ("the second Tribunal").  At the beginning of the hearing the Tribunal said this:

    "Now, I've got both of your – I've got Department of Immigration file and your old Refugee Tribunal file and your new Refugee Tribunal file plus all of the Federal Court papers.  So I've read everything that's in all of those files.  There's quite a lot there but I've read it all and I'm going to have a number of questions for you and you'll have a lot of things that you'll want to tell me."

22. Later the Tribunal added this:

    "Okay, I mean I – as I've said I've read everything that's in your file, I've got all your other statements and I've got the tapes from your other hearing and your departmental interview so I – you know, if there's anything in there that you've missed today then you know I've got it?"

    To which the prosecutor responded:

    "I think it is that missed that there are plenty of information to take place but I'm afraid I don't know which one it is necessary I'd say, that's why I'm asking if there is any question you have, you can ask me I would like to answer anxiously."

    The Tribunal then said:

    "Well, I think I've asked you everything that I need to know".

23. Until this point and save for what appeared in the documents sent to the Federal Court, the prosecutor had given no evidence of any agreement with Ali Tehrani that the latter was at liberty to inculpate him in proscribed activities in Iran.

24. The second Tribunal also rejected the prosecutor's application for a Protection Visa.  In doing so the Tribunal made some adverse findings against the prosecutor.

    "The Tribunal notes that, prior to the second Tribunal hearing, the applicant had never raised the claim that he and Ali had an agreement that Ali would try to save himself by passing on information about the applicant if it became necessary."

25. Later the Tribunal dealt with the prosecutor's relationship in more detail.

    "The applicant told the Tribunal about a real estate transaction in which his colleague Ali Tehrani had been involved after the applicant's departure for Australia which he claims led to Ali's arrest and execution.  The applicant had never raised this claim prior to the second Tribunal hearing.  He claims that the information was given to him by other real estate colleagues, although he did not claim this in prior submissions or hearings.  The Tribunal finds that the applicant concocted this evidence and places no weight on it.

    The applicant gave evidence that he felt that Ali Tehrani would have passed on information about the applicant's activities to the authorities.  He claims that he and Ali had an 'agreement' that, if Ali were to be detained, he would tell the authorities about the applicant's past activities in order to save himself.  The Tribunal does not accept this evidence.  Prior to the second Tribunal hearing, the applicant had never claimed that he and Ali had any sort of agreement.  This claim is purely self-serving."

26. Once again, the prosecutor sought a review, in the Federal Court, of the Refugee Review Tribunal's rejection of his application to it.

27. Branson J, who heard the application in the Federal Court, said this of the prosecutor's relationship with Ali Tehrani and the way in which the second Tribunal had dealt with the prosecutor's evidence concerning it.

    "The applicant gave evidence at the second RRT hearing that he and a former colleague of his, Ali Tehrani, had an agreement that if … Mr Tehrani experienced any problems with the Komiteh, Mr Tehrani should try to save himself by disclosing all the information in his possession about the applicant, as the applicant would be safely overseas.  The applicant had not given this evidence either to the Department or at the [Refugee Review Tribunal ('the RRT')] as initially constituted. …

    Not every failure by the RRT to afford an applicant an opportunity to be heard before drawing adverse inference from his or her failure to raise allegedly important evidence at an early stage will found a ground of review under s 476(1)(a).  It is significant in this case that nothing has been placed before this Court which suggests that had the applicant been given the opportunity which he claims was denied to him, he would have been in a position to provide to the RRT an explanation which would have been supportive of his credit.  As Tamberlin J pointed out in Singh v Minister for Immigration and Multicultural Affairs[211] there is no universal obligation on a Tribunal member to disclose to an applicant its proposed line of reasoning and to seek the comments of the applicant.  Nor is there an obligation on a Tribunal member to inform an applicant of every piece of evidence or every consideration or line of reasoning which the RRT might adopt in assessing his or her credibility.  This was not a case where the RRT obtained information of which the applicant was unaware which tended to reflect adversely on the applicant's credibility (cf Kioa v West[212]). No ground of review based upon any failure of the RRT to comply with procedures with which the Act required it to comply has, in my view, been made out."

    [211](1997) 49 ALD 640 at 645-646.

    [212](1985) 159 CLR 550 at 587.

28. From this decision the prosecutor appealed to the Full Federal Court (Hill, Whitlam and Kiefel JJ).  By the time that the Full Federal Court came to consider the appeal this Court had handed down its decision in Eshetu[213].  The Full Federal Court in accordance with that decision accepted that the Federal Court had no jurisdiction "to set aside the decision of the Tribunal on the ground that it denied to the Appellant natural justice" noting that the submission was not without some substance.  The Full Federal Court also held that no other grounds were made out and dismissed the appeal.

    [213](1999) 197 CLR 611.

29. The prosecutor's next step was to seek relief in this Court by way of prerogative writs under s 75(v)[214] of the Constitution. On 21 December 1999 McHugh J made orders nisi requiring the respondents to show cause:

    "1.WHY a writ of prohibition should not be issued out of this Court directed to the first and second respondents prohibiting them from proceeding further with matter No 98/21291 in the Refugee Review Tribunal and why a writ of certiorari should not be issued out of this Court directed to the respondents, removing into this Court, to be quashed the decision made by them on 3 April 1998 in the said matter.

    2.WHY a writ of certiorari should not be issued out of this Court quashing the decision of the Refugee Review Tribunal made on 3 April 1998.

    3.WHY a writ of mandamus should not be issued out of this Court directed to the Refugee Review Tribunal to grant a protection visa to the Prosecutor.

    4.ALTERNATIVELY WHY a writ of mandamus should not be issued out of this Court directed to the Refugee Review Tribunal to consider the application for a protection visa according to law.

    5.WHY a declaration should not be issued from this court declaring that the decision of the Refugee Review Tribunal made on 3 April 1998 is invalid.

    6.WHY the prosecutor should not be granted an extension of time to seek orders 1, 2, and 3 in this writ.

    7.AND WHY such further orders as the Court deems fit should not be made."

    [214]"Original jurisdiction of High Court

    75      In all matters:

    …

    (v)in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

    the High Court shall have original jurisdiction."

30. The grounds for these orders were:

    "1.The said decision of the Refugee Review Tribunal on 3 April 1998 was beyond its jurisdiction.

    2.The decision of the Refugee Review Tribunal was made in breach of the rules of natural justice."

31. The prosecutor's application was supported by an uncontradicted and otherwise unchallenged affidavit, in which he deposes that the statements made by the second Tribunal that I have set out misled him; that the Tribunal could not, on any view of its findings have read all of the material (the handwritten documents) that he had submitted to the Federal Court.  Had he known this he would have made sure that the material, supporting his assertions in relation to Ali Tehrani, was brought to the attention of the second Tribunal who would then have had no proper basis for findings of dishonesty in relation to this matter.

32. In essence, it is the prosecutor's case in this Court that the second Tribunal, as an officer of the Commonwealth, acted in breach of the rules of natural justice in informing the prosecutor that the Tribunal had, and had read all of the materials, relevantly the handwritten material submitted to the Federal Court when in fact the second Tribunal had not done so. It is not the prosecutor's case that the second Tribunal did this other than honestly. Indeed, the probability is that the Tribunal would only have received formal documents such as the application to the Federal Court, the Court's decisions and perhaps affidavits duly filed and read in that Court. But the prosecutor says that he was misled and deprived of the opportunity of bringing material prepared for the purpose of, and, drawing the agreement to the attention of the second Tribunal. Furthermore, because of the unqualified way in which the second Tribunal stated that "everything that's in all of those files" had been read, and the non-exclusion of the handwritten materials in the Federal Court, the prosecutor was entitled to take that view. Such a breach, the prosecutor contends entitled him to relief under s 75(v) of the Constitution.

33. An alternative submission was made that there had been a breach of s 425 of the Migration Act 1958 (Cth), that the word "opportunity" as used in that section would be read as meaning a full and fair opportunity:

    "Where review 'on the papers' is not available

    425(1)      Where section 424 does not apply, the Tribunal:

    (a)must give the applicant an opportunity to appear before it to give evidence; and

    (b)may obtain such other evidence as it considers necessary.

    (2)Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review."

1. The second respondent submits that there is no doubt that the prosecutor had referred to the arrest and execution of Ali Tehrani in extensive evidence given before the first Tribunal on 4 December 1996 and that he then could and should have referred to any agreement with Ali Tehrani:

   "They told me ... Ali Tehrani has been faced persecution and he was executed by the Iranian authorities.  I know why:  because he was doing the illegal selling of the confiscation properties.   So ... they took a lot of information from Ali from his business.  And also my business, perhaps, because ... we were working together.  So that's why – that's why I am sure the Iranian authorities have information about my past illegal activities of the selling ... and also my activity with ... and my passport at Savak.  So that's why I am sure if I return to Iran I will face persecution.  And they will take lot of information off me as they have taken from Ali Tehrani and then they will execute me."

   It is also indisputable that the prosecutor's claims of an agreement were first made after the adverse finding by the first Tribunal.  Whether the new story was formulated immediately after the first Tribunal's decision, or, at some later stage, as suggested by the finding of the second Tribunal hearing that he had "never raised this claim prior to the second Tribunal hearing" is of little, if any materiality in the circumstances of the prosecutor's having been misled. 

2. The second respondent relied upon what was said at first instance by Branson J with respect to the way in which the second Tribunal dealt with the alleged agreement:

   "However, he had made a written statement to this effect in a document dated 14 January 1997 which he apparently provided by facsimile transmission to the Federal Court following his appeal to this Court from the first decision of the RRT.  The applicant also sent three further documents to the Federal Court.  All four of the documents sent by the applicant to the Court were reproduced in the Appeal Book produced for the purpose of the hearing by the Full Court of the appeal against the decision of Beaumont J.  There is nothing before me to suggest that documents provided to the Federal Court in this way would ordinarily be expected to come to the attention of the RRT.  There is nothing before me to suggest that these documents did come to the attention of the RRT.  Nor has the applicant placed any evidence before the Court on the issues of whether he was in fact misled by the assurance of the member who constituted the RRT that she had read all of his statements and, assuming that he was misled, what he would have done had he been aware that certain documents prepared by him were not available to the RRT.  It seems likely that the RRT was unaware that the applicant had first made a statement in January 1997 which asserted the existence of the agreement between him and Mr Tehrani.  However, the reasons of the RRT indicate that the RRT placed importance on the fact that no evidence of such an agreement was given at the first RRT hearing (see the reasons of the RRT at p 10).  Nothing in the documents sent by the applicant to the Federal Court altered this situation."

3. With respect, her Honour's analysis understates the position.  The second Tribunal did not merely place importance on the absence of evidence of an "agreement" at the first hearing, the second Tribunal said that the prosecutor had never made a claim of it prior to the second hearing of the Tribunal and used that misapprehension as a basis for the finding of a "concoction", with all the pejorative overtones that that word conveys.

4. This is not a case in which a Tribunal has merely misapprehended a fact and therefore has only made an error of fact within jurisdiction.  At the inception of the hearing the second Tribunal mistakenly, but nonetheless prejudicially to the prosecutor, caused him to believe that a state of affairs relating to the manner in which he might choose to conduct his case existed when in fact that state of affairs did not exist. 

5. I regard the matter of the alleged agreement and the question whether it had earlier been mentioned or not by the prosecutor, as material.  The language in which the second Tribunal addressed this matter and the way in which it must have therefore coloured the Tribunal's mind in relation to the prosecutor's evidence on other matters, and the prosecutor's uncontradicted reliance on what the second Tribunal said make this so.

6. Whilst the Tribunal might not have any obligation enforceable at law to give to an applicant an express warning of the possibility or likelihood of adverse findings against him or her, it is an altogether different matter for a Tribunal to misrepresent, however innocently, an important state of affairs bearing upon the way in which a person in the prosecutor's position might proceed to present his or her case.  On the facts deposed to, I think it is not possible to say that what happened did not give rise to an expectation on the prosecutor's part that the second Tribunal had, in fact, read that the prosecutor had already alleged, if somewhat belatedly, the existence of the "agreement" before the hearing of the second Tribunal.  This is not a case in which an expectation has to be constructed out of any special relationships between the parties, or any assumption of responsibility by one towards the other, or has to be inferred from any circumstances of those kinds.  It is a case in which a party has expressly stated something to be so, and the other has deposed to reliance, without being contradicted, a position which may be contrasted with that which was discussed by McHugh J in Teoh[215] and which led his Honour to criticize the application of a doctrine of legitimate expectation there.

   [215]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 313-315.

7. The second Tribunal therefore made, in my opinion, a decision inconsistent with the expectation that the Tribunal had created in the mind of the prosecutor, an expectation that he might safely conduct his case on the basis that all of the documents which contained an account of the alleged "agreement" had been read by the Tribunal.  This was a concrete legitimate expectation in the circumstances.  The fact that the expectation may have been created inadvertently by the Tribunal does not affect the matter.  Regard has to be had to its consequences and not to the absence of any culpability on the part of the Tribunal in creating it.

8. The second respondent accepted that jurisdictional error, sufficient to support a grant of mandamus could, at the time of Federation, have been founded on a breach of the rules of natural justice.  Whilst it is true that the Tribunal had purported to exercise its power of review, the real question is, whether in doing so, it made such an error in failing to afford natural justice, as to amount to an invalid exercise of the power[216].  In my opinion the error is of such a kind.

   [216]Baxter v New South Wales Clickers' Association (1909) 10 CLR 114 at 157 per Isaacs J cited in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 144-145 [20].

9. In Stead v State Government Insurance Commission[217] this Court (Mason, Wilson, Brennan, Deane and Dawson JJ) had to consider whether a breach of the rules of natural justice required in the circumstances that a party be granted a fresh trial.  The particular circumstances were that the trial judge said to counsel who was addressing on a relevant issue, among other things, "You needn't go on as to that" in consequence of which counsel discontinued addressing on the topic.  When the judge came to give his decision he made findings to the contrary of the clear intimation he had made to counsel in discouragement of any further address on the topic.  This Court had no doubt that a breach of natural justice requiring that there be a new trial had occurred.  Their Honours' judgment although they were dealing with an appeal and not an application for prerogative relief, is relevant to the question of what type of conduct will involve a breach of the rules of natural justice sufficient to justify a grant of prerogative relief.  They said[218]:

   [217](1986) 161 CLR 141.

   [218](1986) 161 CLR 141 at 145-146.

   "The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board[219], in these terms:

   'There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.'

   That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being:  Would further information possibly have made any difference?  That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial.  An order for a new trial in such a case would be a futility.

   For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.  By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. 

   Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.  True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact[220].  However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution.  It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.  And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial."

   The existence of an agreement and the time of its disclosure were material matters in this case.  What the second Tribunal said at the beginning of the hearing, and after it, regarding the prosecutor's failure to refer earlier to the agreement and the Tribunal's opinion of the prosecutor because of that failure, meant that the prosecutor had been denied an opportunity to make submissions beyond submissions going to credibility, and on an issue of fact, of some materiality.  The issue of credibility, as to when the existence of the "agreement" was first raised was, in my opinion, inextricably tied up with ultimate, material issues of fact, as to whether such an agreement had been made, and if it had, its likely consequence for the prosecutor.  I cannot say that a different result would not have been reached had the prosecutor not been misled by the second Tribunal.

   [219][1957] 2 QB 55 at 67.

   [220]Supreme Court Rules, O 58, rr 6 and 14.

10. The second respondent submitted that the audi alteram partem principle was not applicable here because the prosecutor was accorded a hearing at which he presented his case in full, and that all the Tribunal did was to make a factual error in assessing his credibility.  But it was precisely because he was misled that the prosecutor did not present his case in full, which included a prior reference to a material fact.

11. In some respects this case is also similar to R v Muir; Ex parte Joyce[221] which was decided before the doctrine of legitimate expectation had evolved to the extent that it now has.  In Muir the respondent Board had, by its actions, led the prosecutor to believe that certain measures might be adopted in relation to his application, which in fact it had no intention of adopting.  In the circumstances the prosecutor was unable to present his case in full[222].  In a case of such a kind, of which this is an example, it is probably not even necessary to invoke and apply a principle of legitimate expectations.  McHugh J was in dissent in Teoh, but his Honour's observations, regarding procedural fairness, are not, I think, affected by that.  His Honour said[223]:

    "I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials.  In the absence of a clear contrary legislative intention, those rules require a decision-maker 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it'[224].  If that approach is adopted, there is no need for any doctrine of legitimate expectations.  The question becomes, what does fairness require in all the circumstances of the case?"

    [221][1980] Qd R 567.

    [222][1980] Qd R 567 at 579 per Dunn J.

    [223](1995) 183 CLR 273 at 311-312.

    [224]Kioa v West (1985) 159 CLR 550 at 587.

12. The case may also be contrasted with Abebe[225] and Eshetu[226].It is not one in which the Tribunal may have failed to record some factual findings in reaching its conclusions.  And, the case is far removed from Abebe in which, even though the Tribunal was not bound to do so, it repeatedly stressed matters that might be of importance to the plaintiff in the determination of her entitlement to a visa[227].

    [225](1999) 197 CLR 510.

    [226](1999) 197 CLR 611 at 629 [54]-[55] per Gleeson CJ and McHugh J, 656-657 [143]-[145] per Gummow J.

    [227](1999) 197 CLR 510 at 607-608 [294]-[296] per Callinan J.

13. I do not take the statements of Rich, Dixon and McTiernan JJ in Bott[228] as necessarily constituting a comprehensive and exclusive statement of the obligations of a Tribunal such as the Refugee Review Tribunal in current times[229]:

    "In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal."

    [228]R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228.

    [229](1933) 50 CLR 228 at 242.

14. But even if the principle is as narrow as that, it is possible and right to say here, that a misrepresentation as to the evidentiary material available to, and used by the Tribunal, is incompatible with a real performance of the Tribunal's duty.  It was, and would in my opinion have been at the time of Federation such a breach of the rules of natural justice as to justify prerogative relief then, as now.

15. I have already stated my reasons why I think the matter is a material one.  The remaining question is whether in the exercise of the Court's discretion all or any prerogative relief should be refused.  That the prosecutor has had a number of separate hearings and has arguably dallied in bringing his application to this Court are relevant matters.  But on the other hand are the doubts, which the unsettled state of the law prior to Abebe and Eshetu may have engendered as to the proper construction of the Migration Act, and the consequences to the prosecutor of the refusal of a visa if his claims are correct. These latter matters I find compelling. They are equally compelling so far as the prosecutor's application for an extension of time to bring these proceedings is concerned which I would also grant. It is unnecessary for me to consider the prosecutor's alternative argument that he was not given an "opportunity", in the sense of a full and fair opportunity, under s 425 of the Migration Act, to give evidence to the Tribunal. 

16. But there is still the question whether the prosecutor should have all the prerogative relief he seeks. The prosecutor's application is based upon s 75(v) of the Constitution which makes no mention of certiorari. Whether, notwithstanding the absence of such a reference, certiorari should nonetheless go, when prohibition, mandamus or an injunction is sought pursuant to s 75(v) because the Court is thereby seized of jurisdiction, or because certiorari is an alternative remedy, whatever other prerogative relief is sought, is discussed by Dawson J in R v Gray; Ex parte Marsh[230] in several passages in which his Honour reviewed some earlier decisions but did not find it necessary to decide whether certiorari was available there or not. Nor is it necessary for me to reach any concluded view on that question here. Although I would grant other relief, I would not grant certiorari, because the legislature in s 476(2)[231] of the Migration Act has excluded review of a relevant decision of the Tribunal on the ground of a breach of the rules of natural justice, and, accordingly it would, in my opinion, be inappropriate to grant a remedy on the basis of such a ground so excluded, and which the Constitution does not compel this Court to grant.

    [230](1985) 157 CLR 351 at 395-397.

    [231]"The following are not grounds upon which an application may be made under subsection (1):

    (a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

    (b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power."

17. The relief which I would grant still has efficacy for the prosecutor.  I would make absolute the first, fourth and sixth orders nisi (but not for certiorari) made by McHugh J and order that the second respondent pay the prosecutor's costs.