Reyes, Ex parte re Min for Imm

[2000] HCATrans 422

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Sydney  No S240 of 2000

In the matter of -

An application for Writs of Prohibition, Mandamus and Certiorari against PHILLIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

KIM WILSON, in her capacity as member of the Immigration Review Tribunal

Second Respondent

SUE TONGUE, in her capacity as the Principal Member of the Migration Review Tribunal

Third Respondent

Ex parte –

ALICIA REYES

Prosecutor/Applicant

McHUGH ACJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 27 SEPTEMBER 2000, AT 2.19 PM

Copyright in the High Court of Australia

______________

MR B.M. ZIPSER:   I appear for the applicant.  (instructed by Ms A. Reyes)

MS D.J. WATSON:   I appear for the first respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.

MS WATSON:   Your Honour, I have been unable to contact the second and third respondents and therefore do not have any instructions in relation to them.

HIS HONOUR:   Yes, thank you.  Yes, Mr Zipser.

MR ZIPSER:   Earlier today an application for prerogative relief in the High Court was served on the Minister, the first respondent.  The first respondent’s position - at present the Department of Immigration has made arrangements to remove the applicant, her husband and their daughter from Australia at around midday tomorrow.  The applicant, her husband and daughter, are currently in detention at the Immigration Detention Centre at Villawood.  My instructions are to apply for an injunction to restrain the Minister from removing the applicant, her husband and child from Australia before the determination of these proceedings in the High Court.

HIS HONOUR:   Yes.  What are the grounds for an injunction?

MR ZIPSER:   There are grounds in relation to the seeking of prerogative relief ‑ ‑ ‑

HIS HONOUR:   I appreciate that, but the Court just does not issue injunctions restraining people unless some right is arguably infringed.  What right of your clients is alleged to have been infringed by the Minister?

MR ZIPSER:   One right is as follows:  under the Migration Act, an application for judicial review having been lodged, my client can make an application for a bridging visa, which may or may not be granted by the Minister.  If my client is deported, then she loses the opportunity to make that application.

HIS HONOUR:   Yes, I know, but does it mean that the application for prerogative relief in this Court is irrelevant?

MR ZIPSER:   If my client was ‑ ‑ ‑

HIS HONOUR:   No.  I mean, you have filed an application for orders nisi.  The way you have just seemed to put your argument would indicate that it is an irrelevancy so far as this injunction proceedings are concerned.

MR ZIPSER:   My client may have a right to remain in Australia.

HIS HONOUR:   Well, when you say “may have a right”, you mean she has a right to make an application.

MR ZIPSER:   She has a right to make an application.

HIS HONOUR:   But why should the Court grant an injunction.  She has made numerous applications, all of which have been refused.

MR ZIPSER:   So far no applications have been made to a court for judicial review of decisions ‑ ‑ ‑

HIS HONOUR:   I appreciate that, but she applied to the IRT for review as long ago as June 1996.  Her application was rejected on 23 February 1998, two and a half years ago.  She was receiving legal advice at the time and we are not told what the advice was, but one can guess.  No application was brought to review that before the Federal Court.  Instead class action was started and it was lost.  There have been applications under section 351, two of them, both rejected.  Now, upon what ground can I possibly injunct the Minister?  At the moment the Minister is under a duty, is he not, by virtue of section 198(6) to deport your client?

MR ZIPSER:   The Minister is under a duty.  However, the Court, in light of the fact that proceedings have been commenced in a court ‑ ‑ ‑

HIS HONOUR:   Yes, but you have to show that you have some possible grounds of succeeding in this particular Court.  Now, I have to tell you I have read your material.  It does not seem to me to get anywhere near making out a case for prerogative relief.  I mean, the lesson I think has to be learnt at the Bar that error of law and jurisdictional error are not the same thing.  Reading the material, at most there is a question of fact involved in this case.  But let it be assumed in your favour that there was an error of law; they were errors within jurisdiction and the Tribunal decided the question it had to decide.

It rejected your client’s application on the basis that her husband did not meet the trade qualification.  Now, that is a question of fact.  Even if there was a question of law involved in it in some way, it is not a question of jurisdictional error.  Can I point out to you that the relief sought is misconceived in this case, and I certainly would not hold that against you.  This is not the first time I have seen this summons and something needs to be said about it, but you are seeking to get prohibition against the Minister.  What has the Minister done?

Prohibition cannot go to the Minister.  He has not exceeded his jurisdiction in any way.  There might be a right – not a right, but relief might be sought to him incidentally by way of injunction, but the real case that you should be putting, if I might say so, is that, first of all, you should be seeking a mandamus against the Tribunal, and that is another factor that needs to be brought to the attention of the practising profession.  You do not seek prerogative writs against the individual.  It is against the institution.  The writ of mandamus should be directed against the Immigration Review Tribunal and I draw your attention to a case in the New South Wales Court of Appeal where the matter is fully explained and set out.  It is Kerr v The Commissioner of Police (1977) 2 NSWLR 721.

Then a mandamus is sought against the third respondent in her capacity as the principal member.  Well, there is no basis whatever, even if you succeeded in your other claims, to get any relief against her by way of mandamus.  She has not breached any duty nor is she threatening to breach any duty.

I just do not know where this notion has grown up at the Bar.  This is not the first time I have seen a summons in the same form as this.  I would have thought that in a case like this what you would be seeking would be mandamus directed to the Tribunal to rehear the application, certiorari to quash the original decision and an injunction against the Minister restraining him from deporting your client pending the finalisation of the new application or the continued hearing or processing of the application before the IRT.

Now, that is not the relief you seek in this case and I am not going to take any point against you on a matter as important as the liberty of the subject as this. I would not have the slightest compunction about issuing an injunction if you could show me that the merits are there and you have got some claim according to the process that is properly applicable to the case, but the section 75(v) writs are prerogative writs and you have got to show an arguable case of jurisdictional error on the part of the Tribunal. Now, I have looked at the material that you have filed as sympathetically as I can and I cannot see any evidence whatever.

MR ZIPSER:   In my submission, in relation to the three grounds of review that are set out in the draft order ‑ ‑ ‑

HIS HONOUR:   Well, the first one, in the draft order nisi or in the affidavit in support?

MR ZIPSER:   In the draft order nisi supported by the affidavit in support.

HIS HONOUR:   Your client in paragraph 5 of her affidavit sets out three reasons why she says it is the IRT decisions role:  the first says that the IRT held that she did not satisfy a particular clause because she failed the STEP test twice and she says that is not correct.  But whether that be so or not is of complete irrelevance, is it not?  It was stated as a matter of historical fact; it was not the ground of the decision.  The second matter, held that her academic attainments did not satisfy the relevant clause.  It was common ground before the IRT that she did not satisfy that.  So there could not be any error of law or jurisdiction in respect of that.  In respect of the third matter she says that she claims her husband’s occupation did satisfy the test of trade.  Well, there was a question of fact on the materials, he apparently had no formal qualifications, material was put before the Tribunal, the Tribunal held as a matter of fact it was not - he did not have a trade.  Now, that said, where is the jurisdictional error?

MR ZIPSER:   In relation to the second matter, which concerned the applicant’s academic qualifications, my submission is that despite what the Tribunal states was the position before the Tribunal, the Tribunal erred in its interpretation of the term “general academic qualification”.

HIS HONOUR:   But how could it err when it is common ground in the particular case and if it erred, why is it not an error within jurisdiction? What it had to decide was whether or not your client was entitled to a visa. There are criteria; it held one of the criteria was not met. But that does not mean it is a jurisdictional error. The section 75(v) jurisdiction is not judicial review legislation or jurisdiction. I mean, errors of law are insufficient.

MR ZIPSER:   Yes, your Honour.  Can I raise ‑ ‑ ‑

HIS HONOUR:   I am putting these matters to you because I want to see whether there is any case that can possibly be made that would support injuncting the Minister and particularly having regard to the time that it has got, the numerous applications that have been made and the fact that now, 2½ years after the decision, you are seeking to set it aside.  Let me also

point out to you that mandamus is a discretionary remedy, that it is well established that mandamus will not lie, or should not be granted, as a matter of discretion when there is a right of appeal or some other alternative to it.  Your client did have an alternative method of going to the Federal Court, did not take it, and so far as certiorari is concerned, it also is a discretionary remedy, but so far as this Court is concerned, its issue is dependent upon you making out a case for mandamus.

Prohibition is arguably not a discretionary remedy or if it is the discretion is not as wide as in the case of other prerogative writs.  But, at the moment, I want to know what it is that would entitle me to issue an order nisi in this particular case?  If you can persuade me that I should issue an order nisi or even to refer the matter into the Full Court, then you would have little trouble getting an injunction out of me.  But until you can satisfy me that I ought to issue an order nisi or, alternatively, that there is enough in the matter to send the matter to the Full Court, there is just no ground for getting an injunction that I can see.  So upon what material do you rely in respect of this claim for the order nisi?

MR ZIPSER:   I have explained the case in respect of the applicant and your Honour has indicated ‑ ‑ ‑

HIS HONOUR:   Well, in the present state of materials it is hopeless.  What I am going to do, subject to hearing what Ms Watson says, I will adjourn these proceedings until 9.15 am tomorrow to give you an opportunity to put on some evidence which might suggest that there is some jurisdictional error on the part of the Tribunal and by that I would want something like the transcript.

Your client’s assertion that she is satisfied is not sufficient.  That does not prove anything.  I would want you to also be in a position to address the question as to whether or not, after two and a half years, why your client should be granted a mandamus or certiorari in any event.  If you will just take a seat for a moment, Mr Zipser.  Ms Watson, you have heard what I have to say.  What is the Minister’s view about these matters?

MS WATSON:   Your Honour, I was coming here to basically argue that there was nothing on the material to show that an order nisi should issue or that there was any arguable case.

HIS HONOUR:   Well, that is as plain as pikestaff.

MS WATSON:   In relation to your Honour’s suggestion, I am not in a position to say whether that might affect operationally her removal tomorrow.  I am not sure what the arrangements are as far as how late her

being put on the plane can be delayed.  I was unclear when I left as to whether it was actually 11 o’clock or 12 o’clock that the plane was leaving tomorrow.

HIS HONOUR:   Yes.

MS WATSON:   And it could be that arrangements have to be made to have her on the plane sometime before the actual departure, so that is the only thing that concerns me.  If your Honour is proposing to go down that course I would like to take the opportunity to get some instructions about that first.

HIS HONOUR:   The case has been brought on - it just seems to me, with great respect, that it is misconceived at the moment, however, somebody has been in the country for 12 years and I hesitate to reject it on the materials that are presently before - they just do not show a case, there is no doubt about that.

MS WATSON:   The only concern I have about your Honour’s suggestion as well is that I do not have instructions - again I can get some - but I would be surprised if we were in a position to be able to find our files by that time tomorrow morning in view of the fact that the matter has essentially been dormant for a fairly lengthy period of time.  So I doubt whether we would be able to assist in locating any material and I suspect that Mr Zipser has put on whatever material he has available to him already to the Court and I just wonder whether there is any purpose in having the matter brought back again tomorrow if there is little chance of finding any further material.

HIS HONOUR:   Yes.  Well, Mr Zipser, what do you say about that?  These applications cannot be brought just to buy time and the message needs to go out loud and clear about that.  This Court, as a result of the amendments to the legislation, is getting a large number of these applications.  They will be dealt with strictly in accordance with the law and precedent, but the message needs to go out that they just cannot be brought at the last moment in the hope of getting some delay of a detention order.  I would like to hear from you now as to in what respects you say there has been an error of jurisdiction on the part of this Tribunal, what you would hope to prove and by what means?

MR ZIPSER:   In relation to the applicant herself, I would have hoped to prove that the Tribunal erred in making a finding that the applicant did not satisfy the criteria in relation to her level of English and passing an English test.

HIS HONOUR:   But it was common ground.  If parties concede points, they cannot then come and say, two and a half years later, there was an error of law let alone an error of jurisdiction.

MR ZIPSER:   Your Honour, in relation to her level of English in the English test, my understanding is that there was not common ground on that issue.

HIS HONOUR:   Well, it is in the judgment.  It says: 

The fact is that the Applicant and the other person put forward in relation to having academic qualifications did not complete their academic work nor were the qualifications sufficient to meet the Australian standard.  This part of the matter is uncontested.  The issue became whether or not the occupation of the Applicant’s husband, Mr Jaime Reyes, was sufficient - - -

MR ZIPSER:   Your Honour, on the previous page, page 3 of the Tribunal’s decision, there is set out criteria for grant of a class 816 Entry Permit, and on my reading of the Tribunal’s decision, in relation to the female applicant, the Tribunal stated that she did not satisfy criteria 6 and she did not satisfy criteria 2 and I considered that I would have needed to deal with both of those in an application for prerogative relief.

HIS HONOUR:   Well, assuming that you could make some sort of a case in respect of that, the fact is that you failed on the question of trade.

MR ZIPSER:   The Tribunal assessed the class 816 visa, first in respect of the female applicant and then in respect of the male applicant.

HIS HONOUR:   Yes, I appreciate that, but that is because she said your client did not make out a case in her own right and that that part of the issue was uncontested.

So the Tribunal then examined a derivative claim based on her husband’s qualifications and found that was not made out.  Now, it says the matter was uncontested.

MR ZIPSER:   My submission before this Court is that even if a matter is uncontested before a Tribunal, if the Tribunal has erred in its interpretation of a term in a regulation then ‑ ‑ ‑

HIS HONOUR:   How can it misinterpret a term which is not in dispute?

MR ZIPSER:   It can give an interpretation to that term which a court on consideration considers was a wrong interpretation.

HIS HONOUR:   But is a standard that has to be met and it is said it is common ground that it was not met.  Now, if that is the situation, there is no error of law on the part of the Tribunal and there is no jurisdictional error.

MR ZIPSER:   In my submission, the meaning of words in legislation and regulations have a certain meaning as interpreted by courts.

HIS HONOUR:   It is a question of fact.  The meaning of words in legislation is a question of fact.

MR ZIPSER:   If, however, the Tribunal’s – there are cases in which courts have held that the meaning of words, for example, technical words, in legislation is a question of law.

HIS HONOUR:   There may be and Agfa’s Case deals with that issue and we dealt with it in this Court in Agfa two or three years ago, this whole question of words, technical words in regulations, but that has nothing to do with this case.  You are here seeking an issue of prerogative writs out of this Court and in respect of a matter that is uncontested.  The more you talk, the more persuaded I am that there is no point in adjourning these proceedings.

MR ZIPSER:   Your Honour, I was going to suggest that it is unlikely there would be any further evidence that I could provide by tomorrow morning, so that this Court can feel that it is in a position to determine this matter this afternoon.

HIS HONOUR:   All right, thank you.

MR ZIPSER:   Your Honour, I have dealt with the argument in relation to the female applicant.  In relation to the male applicant, my submission is that at page 5 of the Tribunal’s decision in the first full paragraph there was a submission made by solicitors for the applicants at the time that the qualifications that Mr Reyes, the male applicant, had and experience are such that he would meet entry standards for the occupation of forklift operator.  It appears from the record of the decision that no finding has been made in relation to that submission.

HIS HONOUR:   Why do you say that?  It said they had “the benefit of a submission that the qualifications that Mr Reyes has and experience is such that he would meet entry standards for the occupation of forklift operator and a similar situation would apply in relation to the occupation of store person” and then down lower it said, “The Tribunal has considered the material and has come to the view that the occupation of the applicant’s husband is not a trade.”  Now, that is the point:  you would hardly call a forklift operator or a storeman as having a trade and although there seemed to be some emphasis placed on another alternative, namely that he was a furniture assembler and junior upholsterer, the Tribunal took the view that the work did not meet the relevant criteria to be considered as a trade.  That is a question of fact.  Even if it was a question of law, it is not jurisdictional error.

MR ZIPSER:   On my reading of the Tribunal’s decision, the male applicant worked as a furniture assembler and junior upholsterer and, apart from that, there was a submission made by solicitors for him that he also had qualifications such that he would meet entry standards for the occupation of forklift operator.  I note from the third full paragraph of the Tribunal’s decision, a paragraph commencing, “In this matter”, in the second sentence it is stated, “The occupations claimed become that of furniture assembler and junior upholsterer.”

In my submission, the Tribunal has considered whether the occupations of furniture assembler and junior upholsterer constitute a trade, but the Tribunal has not considered the submission of the solicitors that he also had qualifications that would meet entry standards of the occupation of forklift operator.

HIS HONOUR:   But the Tribunal goes on to say in the second complete paragraph, “In cases such as this, the Tribunal has to make an assessment about whether or not the occupation of the person in question, in this case the applicant, has as a trade.”  Whatever the situation was, it appears from the Tribunal’s decision that she could not succeed unless she could show her husband had a trade.  Now, where is there in the 1993 regulations anything that would suggest to begin with that qualification as a forklift operator would be sufficient, even if it did not amount to a trade?

MR ZIPSER: The relevant criteria as set out in the Migration 1993 Regulations in paragraph 816.721.

HIS HONOUR:   Yes.

MR ZIPSER:   Your Honour, I only have one copy with me.

HIS HONOUR:   Yes.  Would you hand them up, please.

MS WATSON:   Your Honour, I have copies of an unofficial consolidation which sets out the provisions, if your Honour would ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, that might be of assistance to me.  Now, where is the relevant provision?

MR ZIPSER: In paragraph 816.721.

HIS HONOUR: Paragraph 816.721, yes.

MR ZIPSER:   Subparagraph (2) which states that “an applicant meets the requirements of this subclause if, on 1 November 1993”, and then subparagraph (b) and then subparagraph (ii).

HIS HONOUR:   Yes, “an overseas trade qualification or had work experience as meeting Australian education or training standards for that trade”.  Well if the claim was that in some way he qualified as a forklift operator, the question would still be whether or not that was an overseas trade qualification or had work experience that is assessed as meeting the standards for that trade.  But the Tribunal looked at the material that was relied on and held that he was not involved in trade and it is a fairly large proposition to even begin to argue that the occupation of forklift operator is an overseas trade qualification or work experience that is meeting Australian standards for that trade.  I have never heard it suggested before that a forklift operator constitutes a trade in the sense that carpentry is or fitting and turning is a trade, or plumbing or boiler making or moulding; they are trades.  No doubt there are many other trades.  It might require considerable skill to be a forklift operator, but the critical question is, was there either a trade qualification or had sufficient work experience to meet Australian standards for some trade.

MR ZIPSER:   On my reading of the Tribunal’s decision, it appears to have dealt with the matter of work experience in that it is noted that the male applicant worked as a furniture assembler and junior upholsterer and then in relation to the occupations of furniture assembler and junior upholsterer, the Tribunal stated that on the information provided to it, that work did not meet the relevant criteria to be considered as a trade.

HIS HONOUR:   Yes, but the Tribunal has to determine the issues in accordance with the regulations.  If counsel makes some crazy submission, it does not have to deal with it.  I mean, counsel here, or the solicitor seems to have said, it meets the entry standards for the occupation of forklift operator or meets them in relation to a store person.  Whatever was put before the Tribunal, it considered it and rejected it.  How could you possibly say that being a forklift operator was a trade?  It might be a skilled occupation; it is hardly a trade.

MR ZIPSER:   In my submission there is no indication from the Tribunal’s record of decision that it considered or rejected that particular submission.

HIS HONOUR:   It goes from the fact that it rejects it; it rejects the claim.  Just because the Tribunal does not deal with something expressly does not mean that it did not reject it.  There has been much written both in the Federal Court and by the Tribunal about this matter and the Tribunal must determine whether or not the occupation amounts to a trade and the Tribunal member goes down to say, “the occupations claim become that of”.  So, whatever it was that Ms Oag was putting, came down to a claim, a furniture assembler and junior upholster as a warehouse store person and warehouse manager.  As I continue to point out to you, you have got to make out a case of jurisdictional error.

MR ZIPSER:   Your Honour, I have indicated ‑ ‑ ‑

HIS HONOUR:   Yes, I understand ‑ ‑ ‑

MR ZIPSER:   - - - the grounds that would be pursued if this matter went further.

HIS HONOUR:   Well, thank you.  Is there anything further that you want to put?

MR ZIPSER:   There is nothing further.

HIS HONOUR:   No, thank you.  Well your position is that you would not be able to improve your case by 9 o’clock in the morning?

MR ZIPSER:   Yes, that is correct, your Honour.

HIS HONOUR:   Yes, thank you, Mr Zipser.  Yes, Ms Watson.  Your position is that you oppose this?

MS WATSON:   I oppose the application and oppose the orders that are being sought on an interlocutory basis.

HIS HONOUR:   Yes.  In all the circumstances I can see that no useful purpose would be served by adjourning the case until tomorrow.  I will give judgment in this matter.

This is an application made, without filing any documents, for an injunction against the Minister for Immigration and Multicultural Affairs to restrain him from deporting the applicant, Alicia Reyes, and her family tomorrow.  The application for an injunction is made in the context of an application, which has been filed in the Court today, for orders nisi to be issued directed to three persons.  The first is Mr Phillip Ruddock in his capacity as the Minister for Immigration and Multicultural Affairs, the second is Ms Kim Wilson in her capacity as a member of the Immigration Review Tribunal, and the third is Ms Sue Tongue in her capacity as the principal member of the Migration Review Tribunal.

The draft order nisi calls on the three respondents to show cause why a writ of prohibition should not be issued out of this Court directed to the Minister prohibiting him or his agents or delegates from acting upon or giving effect to or enforcing a decision of the second respondent made on or about 23 February 1998.  In that decision, the second respondent held that neither the applicant nor her husband were entitled to the grant of a class 816 special permanent entry permit.

The respondents are also asked to show cause why a writ of certiorari should not be issued out of this Court directed to the second respondent removing into this Court and quashing the decision.  Finally, the respondents are asked to show cause why a writ of mandamus should not be issued out of this Court directing the third respondent to appoint a member of the Migration Review Tribunal to rehear and determine the applicant’s application for a class 816 special permanent entry permit in accordance with law.

In support of the application for orders nisi the applicant, Alicia Reyes, has filed an affidavit dated today, 27 September 2000.  In her affidavit, she recites that she arrived in Australia with her husband from the Philippines in 1988 and that from 1988 until 1991 they were in hiding in Australia.  She states that, in May or June 1994, she applied to the Department of Immigration and Multicultural Affairs for a class 816 special permanent entry permit or a class 818 highly qualified on-shore permanent entry permit.

In January 1996, the application was refused by a delegate of the Minister.  In May 1996, the decision of the delegate was affirmed by the Migration Internal Review Office.  In June 1996, the applicant applied to the Immigration Review Tribunal for review of the decision, but on 23 February 1998 the Immigration Review Tribunal affirmed the decision of the delegate not to grant her or her husband a class 816 or class 818 entry permit.

The reasons of the Immigration Review Tribunal show that the applicant failed to meet the criteria for a clause 816 or a clause 818 entry permit.  Apparently there was no evidence which could arguably support the application for a class 818 permit, and the application turned on whether or not the applicant could make out a case for a class 816 entry permit.  To do so, it was necessary for her to establish seven criteria, five of which had to be met at the time of the application and two of which had to be determined as at the date of the decision.

In its reasons, the Tribunal drew attention to the fact that neither the applicant nor a related person had the relevant academic qualifications, nor had they completed academic work or had qualifications sufficient to meet the Australian standard for the criteria in clause 816.721(2)(a). The Tribunal expressly said that this part of the matter was uncontested. The Tribunal went on to say that the issue became whether or not the occupation of the applicant’s husband was sufficient to come within the criteria in clause 816.721(2)(b). In that respect the applicant’s claim to meet the criteria was a derivative one based on her husband’s qualification.

To deal with that qualification the Tribunal had to be satisfied that the husband:

held an overseas trade qualification or had work experience, that is assessed as meeting Australian education or training standards for that trade.

In giving its reasons the Tribunal said:

In this matter, absent clear qualifications which would have been capable of assessment by the relevant authority, the Tribunal has considered the material provided and has come to the view that the occupation of the Applicant’s husband is not a trade.  The occupations claimed become that of furniture assembler and junior upholsterer with Anes Studio work as a warehouse store person and warehouse manager.  I have considered the information provided and the work that is carried out.  In my view the work does not meet the relevant criteria to be considered as a trade.  I do not regard either occupation as a handicraft although clearly both occupants require some skill.  I am not satisfied on the basis of the material provided that the skill involved is sufficient to nominate the occupations as a trade with all that involves. 

On the basis of this consideration the Applicant fails to meet one of the key criteria in relation to the application.

The Tribunal affirmed the decision not to grant a class 816 or class 818 entry permit. 

In support of her claim for an order nisi, the applicant said that the decision of the IRT was wrong for three reasons.  First, it had recited that she had failed the STEP test twice.  The applicant asserts that that is not correct and that she sat that test once and passed it.  But whether that be so or not, that matter was referred to only as a matter of historical fact in the reasons of the Tribunal.  It had nothing whatever to do with the decision it came to.

Secondly, the applicant claimed that the IRT had held that her academic attainments did not meet clause 816.721(2)(a) in Schedule 2 of the Migration 1993 Regulations. I have already pointed out that the Tribunal’s reasons recite that that was not contested and that the issue in the case became whether or not the applicant’s husband could satisfy the alternative limb under clause 816.721(2)(b) of having an overseas trade qualification or work experience that met the relevant Australian standards for that trade.

Thirdly, the applicant claimed that the Tribunal erred in holding that her husband’s occupation as “a furniture assembler and junior upholsterer” and also his work as a warehouse manager were not sufficient to satisfy the test of “trade” in clause 816.721(2)(b) in Schedule 2 of the Regulations. The applicant asserts that his “occupation satisfied the test of ‘trade’ in clause 816.721(2)”.

On the face of the affidavit filed in support of the order nisi, it seems to me very clear that the applicant had no case for the issue of orders nisi for prerogative writs in this Court. At the highest, only factual errors were alleged. Because I was concerned to give the applicant every opportunity to put further material before me which might show an arguable case of error sufficient to attract section 75(v) of the Constitution, I intimated that I would adjourn the proceedings until tomorrow morning to enable the applicant to put further evidence before me to make out a case. However, Mr Zipser, who appears for the applicant, candidly conceded that there was no material that he could put on by that time which would advance his case. Nor did he indicate that he knew of other evidence that would support his case.

Faced with his statement that he could not put on any additional material by tomorrow morning, it seemed to me, in all the circumstances, that I should continue with the hearing of the application in view of the fact that arrangements had been made to deport the applicant tomorrow.  As a result, the application for the injunction continued, and Mr Zipser valiantly attempted to persuade me that there was some material upon which I would be justified in granting an order nisi with the result that I should injunct the Minister from deporting the applicant until the order nisi had been determined.

In my view, notwithstanding his valiant attempts to make out a case, there is nothing before the Court that would enable it to issue an order nisi directed to any of the respondents.  Nor is there anything before me which would justify the Court injuncting the Minister.

The reasons for decision of the Immigration Review Tribunal show that the case before it turned on a simple question of fact ‑ whether the material put forward concerning the husband’s work as a furniture assembler and junior upholsterer constituted a trade for the purpose of the relevant criteria.  There is nothing to suggest that there was any error of law.  Indeed, error of law in itself would not be sufficient to obtain an order nisi.  To succeed in an application for an order nisi, the applicant would have to make out a case of jurisdictional error.  If there was any error – and I cannot see any error – it would seem only to be an error within jurisdiction and not an error which would constitute jurisdictional error.

In oral argument, Mr Zipser referred to another matter which he claimed would justify the grant of orders nisi.  In its reasons, the Tribunal said:

The Tribunal had the benefit of a submission from Belen Oag in relation to this matter and that submission argued that the qualifications that Mr Reyes has, and experience, are such that he would meet entry standards for the occupation of forklift operator and that a similar situation would apply in relation to the occupation of store person. 

In cases such as this, the Tribunal has to make an assessment about whether or not the occupation that the person in question, in this case the Applicant’s husband, has is a trade.”

Mr Zipser contends that the Tribunal’s reasons do not deal with the question of forklift operator and, if I understood him correctly, with the occupation of store person.  As to the latter, however, it is clear that the Tribunal’s reasons, which I have set out earlier, show that, in so far as the occupation of store person was concerned, the IRT considered but rejected it as a trade.  However, it is true, as Mr Zipser points out, that there is no further mention of the submission that the husband would meet entry standards for the occupation of forklift operator.

I think the short answer to that is that it would only meet the entry standards if being a forklift driver constituted a trade for the purpose of the criteria.  The Tribunal, in examining the applicant’s case, took the view that there was no relevant trade, a decision which would seem to be absolutely correct in respect of a forklift operator, a position which requires a good deal of skill but is not ordinarily thought of as a trade.

In my view, the contention that the Tribunal has committed a jurisdictional error by not dealing with an argument of the applicant’s solicitor must be rejected.

Mr Zipser also sought to put an argument in respect of the question of educational qualifications.  Even though there had been no contest at the IRT hearing, he submitted, or said he would want to submit, that the applicant’s qualifications did meet the criteria and for that reason there was an error sufficient to warrant the grant of an order nisi.

There seem to me to be a number of answers to that.  The first is that, it being common ground that she did not meet the educational qualifications, the Tribunal made no error of law or fact in coming to the conclusion that that particular criterion had not been made out.  Secondly, even if it was open to argue this point in support of an order nisi, it would seem to be very much a question of fact and certainly not one which could be regarded as giving rise to a jurisdictional error. 

For those reasons, it seems to me that there is no ground whatever for the issue of orders nisi as sought or for granting an injunction against the Minister. 

Before leaving the case, I should mention a matter that I referred to at the outset of the hearing, namely, that the relief sought was misconceived.  I pointed out that, having regard to the gravity of the issue so far as the applicant was concerned, I would not deal with the matter on that basis but would look at the substance of the matter.  Nevertheless, because this is not the first time that I have seen a summons for an order nisi seeking relief such as that directed to the parties in this case, it is necessary that something should be said about the relief sought. 

In the first place, there is no ground whatever in a case such as the present for the issue of a writ of prohibition against the Minister.  As was conceded, as the law stands at the moment and on the facts of the case, the Minister was under a duty, in accordance with section 198 of the Act, to deport the applicant.  No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error.

However, if the decision of the Immigration Review Tribunal had been quashed and a further hearing ordered, it would be proper in an appropriate case to injunct the Minister from deporting the applicant while the matter was still before the Immigration Review Tribunal.  But such an order against the Minister would be incidental to the principal relief which would be obtained, namely, the quashing of the Tribunal’s decision and the ordering of a further determination of the applicant’s claim before that Tribunal.

The second matter to which I refer is that the writ of certiorari is directed to the second respondent “in her capacity as a member of the Immigration Review Tribunal”.  However, it is not the proper practice, and never has been, to make persons constituting tribunals the respondent in applications for prerogative relief.  The respondent should be the Tribunal itself, apart from those cases falling within Order 55 rule 8 of the High Court Rules.  In that respect I would refer to Brown v Rezitis (1970) 127 CLR 157 at 169 and to Kerr v Commissioner of Police and Crown Employees Appeal Board (1977) 2 NSWLR 721.

The third matter I mention is that relief by way of mandamus was sought against the third respondent in her capacity as the principal member of the Migration Review Tribunal.  However, mandamus will not lie except for the breach of some public duty imposed upon a person.  There is not the slightest suggestion, nor could there be, that the third respondent is in breach of any duty.  Indeed, even if the order of the Tribunal was quashed, no relief could be sought against the principal member of the Tribunal.  Of course, it may be that at some subsequent time if the principal member failed to appoint a person to carry out the duties of the Tribunal, it would be proper to order mandamus against her.  But it is certainly not lawful to issue mandamus against a person such as the principal member of the Migration Review Tribunal in respect of something that has not occurred and where no breach or potential breach of duty on that person’s part has been shown.

If jurisdictional grounds had been made out in this particular case, a serious question would still arise as to whether or not writs of certiorari or mandamus should be directed to the Tribunal.  In my view, in a case of this nature, if there are grounds, the proper relief that should be sought is a mandamus directed to the Tribunal to re-hear the matter according to law, and certiorari to quash the original decision.  In an appropriate case, it may be necessary also to restrain the Minister from deporting the applicant pending the determination of the Tribunal of the re-hearing.  But the principal relief would be mandamus and certiorari, not prohibition against the Minister, which is not a relevant remedy. 

Mandamus and certiorari are both discretionary remedies.  In the case of certiorari, there are time limits which have long since expired.  In the case of mandamus, more than 2½ years have elapsed since the decision of the Tribunal.  It appears from the applicant’s affidavit that she did not apply to the Federal Court for review of the Tribunal’s decision because of the advice of her solicitors.  Instead, she joined in a class action in February 1998 which was dismissed in June 1999.  She has made three applications for the exercise of power by the Minister under section 351 of the Act.  In all the circumstances, I think I would have hesitated before issuing orders nisi for writs of mandamus and certiorari, given the history of the matter and the long delay that has taken place.

There being no grounds for the issue of orders nisi, it follows that the application must be dismissed.  Similarly, the application for an injunction against the Minister must also be dismissed.

I certify for the attendance of counsel.

MS WATSON:   Would your Honour make a formal costs order in favour of the respondent?

HIS HONOUR:   What do you say?  It is pretty irrelevant, I take it.

MS WATSON:   It probably is.

MR ZIPSER:   I have no submissions in relation to costs.

HIS HONOUR:   Yes.  I think the application must be dismissed with costs, although both counsel seem to agree it is an academic exercise.

Adjourn the Court.

AT 3.38 PM THE MATTER WAS CONCLUDED