Trinh, Ex partre - Re - Nicholls & Anor
[2004] HCATrans 77
[2004] HCATrans 077
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M188 of 2002
In the matter of -
An application for Declarations, Certiorari, a Writ of Prohibition and Injunction against NICK NICHOLLS
First Respondent
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Respondent
Ex parte –
THI HONG TRINH
Applicant/Prosecutor
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY, 15 MARCH 2004, AT 9.59 AM
(Continued from 26/2/04)
Copyright in the High Court of Australia
MR D.A. PERKINS: If your Honour pleases, I appear for the applicant. (instructed by Access Law)
MR S.G.E. McLEISH: If your Honour pleases, I appear for the respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Perkins.
MR PERKINS: If your Honour pleases, there is a draft outline of submission which has been prepared by my instructing solicitor and upon which the applicant wishes to rely.
HIS HONOUR: Can I pause and read this, or is that the best way to proceed, Mr Perkins?
MR PERKINS: If your Honour pleases.
HIS HONOUR: Yes. Do sit down.
MR PERKINS: Thank you, your Honour.
HIS HONOUR: Have you seen this, Mr McLeish?
MR McLEISH: Some time after 9.30 this morning, your Honour, but yes.
HIS HONOUR: Well, you are ahead of me, are you not, Mr McLeish? Yes, I have read that, thank you, Mr Perkins.
MR PERKINS: Your Honour, the orders that are sought, if your Honour were minded to have the matter dealt with in this Court, as distinct from referring it, are contained in the revised draft order nisi. Your Honour, the applicant contends that, given the provisions of section 351(3), irrespective of the provisions of 351(7) – that is, I am referring to the requirement that the power under subsection (1) may only be exercised by the Minister personally, then by subsection (7) I am referring to the provision that “The Minister does not have a duty to consider” – it is contended that the personal exercise of the power does require that the Minister come to opinions about the matter personally.
It is contended that the sorts of cases in which other people have been party to the exercise of a power – there have been instances of cases in which other people have participated in the course of deliberations by courts and it is conceded that this is not such a case, but it is contended, nonetheless, that the Minister has a personal obligation which is inherent in subsection (3) and that the provisions of section 351(7) are to be treated, as the outline says, as a privative clause and that it is not open, particularly where there is a discretion, for that discretion to be exercised in a manner which, in effect, allows the whim of the Minister.
The section may well permit such an exercise of discretion and it is contended that such an exercise of discretion is simply not open because, given the things that the Minister is concerned with, there is an obligation to consider the matter properly and the entire continuum, it is contended, must be a personal consideration by the Minister. I refer to, but I do not propose to take your Honour to, the things that were said about the exercise of power by Ministers in the case of Jia. Your Honour, those are really the matters that I wish to ‑ ‑ ‑
HIS HONOUR: How do those submissions stand with what is said in S134 211 CLR 441, particularly in the joint reasons at paragraphs 44 to 48 and in the reasons of Justices Gaudron and Kirby at paragraphs 98 to 100?
MR PERKINS: Your Honour, the position is that I am not able to answer that question from your Honour and I would seek to have a few moments so that I could do that.
HIS HONOUR: How long do you ask for?
MR PERKINS: I think 15 minutes. I anticipate that I have the decision here, your Honour.
HIS HONOUR: I would ask you also to consider how the propositions you advance would sit with the stream of authority in the Federal Court, commencing perhaps most conveniently with Bedlington v Chong 87 FCR 75, in particular, decisions like – and this is by no means exhaustive – NAQG of 2002 [2002] FCAFC 414 and then an example of a decision at first instance, NARP v The Minister [2003] FCA 847.
At the moment I understand those cases to say that the Minister may choose, as he or she sees fit, to obtain advice, not obtain advice, obtain submission, not obtain submission about whether the power given by provisions like section 351 is to be exercised or not but, at the end of the day, section 351(7) has the effect that, whatever the quality of the advice given, it is a matter for the Minister alone to decide whether to embark upon the question. If the Minister chooses not to embark upon the question, then mandamus will not go, other relief would serve no utility. It is now 10.10, Mr Perkins. If I return to the Bench at 10.30, would that suffice?
MR PERKINS: I am grateful. Thank you, your Honour.
HIS HONOUR: Adjourn until 10.30.
AT 10.10 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.31 AM:
HIS HONOUR: Yes, Mr Perkins.
MR PERKINS: I am grateful to your Honour. May I address the two passages that your Honour referred to in S157. Paragraphs 44 to 48 are all things that were said in connection with relief which has been sought against the Minister. Now, this case is not that case, as it is put to your Honour. This is a case which seeks to have a proper carrying out of the decision‑making prior to the matter going to the Minister.
HIS HONOUR: What is the statutory basis for what you describe as the decision‑making before the matter goes to the Minister?
MR PERKINS: Your Honour, there is a set of policy guidelines which the Minister has brought into existence and, in particular, point 4.2.8 of that set of policy guidelines is ‑ ‑ ‑
HIS HONOUR: Do those guidelines find their status from some provision of the Act?
MR PERKINS: No, they do not, your Honour, but they set out to confine, in a principled manner, the circumstances in which the Minister will be prepared to entertain the consideration of, or consider, things that arise under section 351 – or sections including 351, I should say. The guideline in question, if it is appropriate for me to go to that ‑ ‑ ‑
HIS HONOUR: Yes.
MR PERKINS: ‑ ‑ ‑ provides:
Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident) or an Australian citizen;
Now, whilst it may be recognised that the expression “strong compassionate circumstances” is an expression of wide compass, that, nonetheless, is what defines the ambit of what it is that the Minister could consider in the event that the matter were to be put before him. The notions of “irreparable harm and continuing hardship” are also matters of wide compass and, again, the ambit of what it would be open to the Minister to consider in the event that an appropriately drafted document were put in front of him is wide.
It is contended, firstly, that even on the face of section 351(7), the fact that the Minister may not have a duty pursuant to the statute is not something which necessarily involves the proposition that there is any futility on the part of this applicant in the making of this application. It may well be that the relief which the applicant seeks is relief which ultimately, by a subsequent decision, the Minister can, in effect, render nugatory, but I would contend that that does not make the present application futile. It would not make the relief sought futile and so I would contend that the mere existence – and assuming it for the moment to be a section that is to be taken literally – of section 351(7) is not any bar, nor is it a discretionary basis, to the provision of relief by this Court.
I began to address paragraphs 44 to 48. The distinction that I put is that those paragraphs are directed to a different stage of the continuum of events that may constitute, in effect, the proceeding which ends up going to the Minister. What I contend is that the present application is not within the focus of what is said in paragraphs 44 to 48. Then, again, paragraphs 98 to 100 of S157, your Honour ‑ ‑ ‑
HIS HONOUR: It is S134.
MR PERKINS: I apologise, it is S134. The application being considered there was the compelling of consideration of the application which had been made. Now, this present application seeks to strike at an earlier time and on a different basis. What I have just said about this not being a futile application is what I would seek to rely on in that respect. There, it was sought to quash the Minister’s decision. Here, what is sought is to quash something that has occurred in the course of the matter being made ready for the Minister’s determination, or consideration. The draft order nisi is one in which relief is sought against the first‑named respondent and not against the Minister.
It is contended that in the present case it is possible to examine the reasons – it is a matter of examining the reasons that have been given and it is contended that it is possible to discern error in those reasons. The error which it is contended has occurred has been in the description by – well, if I may refer your Honour to the document itself. It is exhibit THT‑7 and it is the last page in that document. The document deals with what it refers to as bona fides issues. To say, as the document does, that “Serious bona fide concerns arise” is one thing, but it is quite another thing to say that those concerns have been considered and that it has been determined, one way or another, that they should be resolved by saying they are no longer of concern or, on the other hand, they are not merely of concern; they provide actual barriers to what it is the applicant seeks.
The particular paragraphs that I would refer to are the third and the last prior to the boxed section. I would contend that equivocality cannot be turned into a basis for decision‑making where it is open to the decision‑maker to consider the matter and come to a resolution. Nor is it appropriate that matters such as this be turned into, in effect, a comment on the morality of one spouse leaving another. Those matters are, in my submission, matters that may be open to consider, but where they are left equivocal, in my submission, they are not.
I would contend – and I do this in circumstances where I do not purport to make any attack on what was said in Bedlington, but I say I do not have to, because I say that this is an application which, in a sense, recognises the force of what was said in Bedlington and accepts that there must be a different way, if relief is to be given, of obtaining that relief. It is contended that where the decision‑making continuum is one which, at its peak or at its end, involves what is a completely unfettered discretion on the part of the Minister, not attended by any statutory, at least, duty – and it is not accepted that the Minister does not have a duty. It is accepted that the statute says that he does not. But, your Honour, it is contended that discretionary decision‑making, in particular, when it is not exercised by a court or a body which is required to ensure that the rules of procedural fairness apply, it is contended that such decisions ought to be particularly susceptible of consideration pursuant to section 75 of the Constitution.
I think it was Lord Camden who described “discretion” as including every vice, folly and passion known to mankind. It, on the other hand, of course, includes cases in which the discretion is exercised judicially. But, in my submission, the fact that the discretion appears to be so open‑ended on the part of the Minister must be attended by a requirement that the procedure which leads up to that decision be rigorous and examinable. So it would be my contention that the decision, and the process that has occurred on the part of the first respondent, and the use and adoption of the document to which I have taken your Honour, entail that this is an appropriate case for the matter to be considered further. If your Honour pleases.
HIS HONOUR: Yes, thank you, Mr Perkins. Yes Mr McLeish.
MR McLEISH: Your Honour, in my submission, this case is not about discretionary decision-making power. The action which is sought to be challenged is that of the officer of the department who, far from making a decision, let alone a decision under the statute, made a recommendation to the Minister and it was a recommendation the Minister chose to adopt. The recommendation is recorded in the minutes which is part of THT‑8, the exhibit to the applicant’s affidavit affirmed in support of the application. It is the final page of that exhibit
HIS HONOUR: Yes, I have that.
MR McLEISH: In that document, the officer, Mr Nicholls, provides a minute to the Minister recording his view that:
These cases have been assessed against the Guidelines and found not to fall within their scope.
If you decide that you may wish to consider these cases or require more information please indicate this on the attached table.
If you decide that you do not wish to consider the exercise of your public interest power, the instrument and letters, where applicable, are attached for your signature.
So in that document Mr Nicholls was suggesting to the Minister that these cases were not ones where he should consider exercising his power, but he was not making that decision on the Minister’s behalf; it was simply a recommendation. The operative decision, if I can use that term loosely, is that of the Minister which forms part of the preceding exhibit, THT‑7. It is the second page of that exhibit.
HIS HONOUR: Yes, I have that.
MR McLEISH: The Minister says that he has:
read the attached schedule dated 20 September 2002 –
which appears to be that which was attached to the minute I took your Honour to before –
which has been provided to me by the Department concerning the request by the named persons for the exercise of my power under section 351 of the Migration Act 1958. Unless otherwise indicated on the attached schedule, I do not propose to consider the exercise of that power.
The Minister has therefore done as was recommended, that is, indicated if he decided that he did wish to consider the cases and, presumably, otherwise signed the draft letters that were attached to the minute for his signature. So there was no operative decision by Mr Nicholls, who is the named respondent in the draft order nisi. Secondly, even if there was a decision, it was not one which would be amenable to judicial review. It cannot be said that there was a duty imposed on the officer by law. The Full Court’s decision in NAQG of 2002, which your Honour referred to – does your Honour have a copy of that decision?
HIS HONOUR: Yes, I do.
MR McLEISH: That is a stronger case than this one, from the applicant’s perspective, in the sense that there the officer did not refer the matter to the Minister and the matter never reached the Minister’s desk, but the Full Court of the Federal Court held that there was no duty, either on the Minister or on the officer, to deal with the matter. This case is a fortiori, in my submission, because the matter did reach the Minister’s desk.
The Minister decided, in accordance with subsection (7), that he did not wish to consider exercising the power and, as all members of the Court held in S134, that the Minister’s decision is not one susceptible of review under section 75(v). If the Minister’s decision, which is the operative decision, is not susceptible of review, it would be surprising, in my submission, to say the least, if the delegate’s decision, which had no legal effect and which was under no legal obligation to make, was so susceptible.
HIS HONOUR: You say “delegate”. Was the officer concerned acting as delegate?
MR McLEISH: I am sorry, your Honour, I should not have used the term “delegate”. Certainly not, but there is no provision for the officer to have made the decision and, in fact, section 351(3) requires the Minister to make the decision personally. That would support the view of the documents which I have put forward to your Honour that the officer was not purporting to make this decision and would not be the appropriate respondent.
There are some other matters in the written outline, but my friend did not refer to them fully so perhaps – I am speaking, in particular – there is a suggestion that there is a constitutional issue arising which I perhaps need not trouble your Honour about. The submission that section 351(7) is a privative clause should not be accepted, in my submission. It is a provision which specifies whether the Minister has a duty or not to act in a particular way or to consider making a decision and it cannot be construed as a privative clause, and nor was it so construed the equivalent provision in S134. If your Honour pleases.
HIS HONOUR: Yes, thank you, Mr McLeish. Yes, Mr Perkins.
MR PERKINS: Your Honour, I would want to make it clear I was not abandoning anything that I did not ‑ ‑ ‑
HIS HONOUR: I did not understand you to have abandoned it and I did not understand Mr McLeish to have treated you as having done so.
MR PERKINS: No, your Honour. My contention is that a power falls to be exercised from time to time. My contention is, specifically, that the fact that the Minister has decided that he will not embark on a consideration of a matter is not something which in any sense prevents him from considering in the future and if a basis upon which it might be said that it would be open to him to consider the matter is established in a satisfactory way. So it is contended that the fact that the Minister has made it clear that he does not propose to consider the matter is no bar, nor is it a matter which, as a matter of discretion, ought to result in the steps which lead up to the Minister’s decision being open to consideration.
It is contended that the circumstances of this case make it all the more important that the steps which lead up to the matter being placed before the Minister are scrupulously complied with and complied with in a fashion which does comply with ordinary legal rules. So for that reason it is contended that it is not correct to treat this case as being an even stronger case than the case of Bedlington. I will not repeat the distinction I seek to draw, but I do rely on it. If your Honour pleases.
HIS HONOUR: Yes, thank you, Mr Perkins.
MR PERKINS: I am sorry, your Honour.
HIS HONOUR: Yes.
MR PERKINS: May I simply refer to section 33 of the Acts Interpretation Act. I do not want to take your Honour through that, but I would rely on the expression “from time to time”.
HIS HONOUR: On 31 October 2002 Thi Hong Trinh filed an affidavit in support of an application for an order nisi issue calling on Nick Nicholls, who is an officer of the Minister’s department, and the Minister for Immigration and Multicultural and Indigenous Affairs to show cause why:
(a) a Declaration should not be made by this Court that Thi Hong Trinh falls within the scope of the Section 351 Guidelines;
(b) a writ of certiorari should not issue out of this Court directed to the first respondent [Mr Nicholls] quashing his decision that Thi Hong Trinh did not fall within the scope of the Section 351 Guidelines;
(c) an order of or in the nature of mandamus and/or an injunction should not issue out of this Court directed to the first respondent directing him to reconsider his decision;
(d) an order of or in the nature of mandamus and/or an injunction should not issue out of this Court prohibiting the respondents from taking any step to detain Thi Hong Trinh or to remove her from Australia, or otherwise to implement or give effect to the first respondent’s decision; and/or –
(e) any declaratory, injunctive or other equitable relief and should not be granted to the prosecutor or interim orders made in the matter.
The grounds then given for that application were that:
1. Thi Hong Trinh falls within the scope of the Section 351 Guidelines.
2. The first respondent erred deciding that Thi Hong Trinh did not fall within the scope of the Section 351 Guidelines.
3. The error that the first respondent committed misled the second respondent (“the Minister”) and caused him to not exercise his discretion to consider Thi Hong Tringh’s request.
4. There is no reason to conclude that the Minister would not have exercised his discretion to consider Thi Hong Trinh’s application had he not been misled by the first respondent.
The application in that form was not brought on for hearing until after the decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 211 CLR 441, a decision delivered on 4 February 2003.
On 7 February 2003 this matter and a large number of other matters were called over, but this matter was then stood out of the list to give the applicant an opportunity to consider amending the draft order nisi that then had been filed. No further step was taken in the application before the matter was called over again on 26 February 2004. I was then informed that the applicant wished to amend her application and thereafter a revised draft order nisi was filed. The revised draft order nisi is still directed to Mr Nicholls and to the Minister. It would have the respondents both show cause why:
(a) an order in the nature of certiorari should not be made quashing the decision of the first respondent (as recorded in a Minute dated 22 September 2002 to the second respondent (“the Minister”)) that the prosecutor was not eligible to be considered by the Minister for the purposes of s 351 of the Migration Act 1958;
(b) an order in the nature of mandamus should not be made directing the first respondent to determine in accordance with law the question of the prosecutor’s eligibility for consideration in relation to s 351; and/or
(c) a declaration should not be made that the purported decision was a nullity.
The grounds stated in the draft order nisi are:
1. The first respondent erred in law in concluding that the prosecutor was not eligible for consideration by the Minister for the purposes of s 351, by reason that the prosecutor did not fall within the guidelines published by the Minister for the purposes of s 351 (“the guidelines”).
2. The first respondent misunderstood and misapplied the guidelines.
3. The conclusion that the prosecutor did not fall within the guidelines was not open on the evidence before the first respondent.
Section 351 of the Migration Act 1958 (Cth) empowers the Minister to substitute for a decision of the Migration Review Tribunal made under section 349 of the Act another decision more favourable to the applicant “If the Minister thinks that it is in the public interest to do so”. Section 351(7) provides that:
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
The material filed in support of the present application reveals that the applicant married Dung Manh Tran, an Australian citizen, in June 1997. At the time of that marriage the applicant was not the holder of a permanent resident visa to remain in Australia, but subsequently applied for one. That application was refused and the applicant then applied to the Migration Review Tribunal for review of that decision refusing her application for a permanent resident visa. On 15 March 2001 the Migration Review Tribunal affirmed the decision to refuse the application for a visa.
Subsequently, application was made on behalf of the applicant for the Minister to exercise his powers under section 351 of the Act. In September 2002 the Minister decided not to consider exercising his power in this case. Documents subsequently obtained by the applicant reveal, amongst other things, that a Migration Series Instruction was issued by the then Minister, dated 31 March 1999, for the purpose of informing departmental officers:
of the unique or exceptional circumstances in which I [the Minister] may wish to consider exercising my public interest powers under s345, 351, 391, 417 or 454 of the Migration Act 1958, as the case may be, to substitute for a decision of the relevant decision maker, a decision more favourable to the person concerned in a particular case;
The first respondent, by minute dated 22 September 2002, submitted a number of cases in which the exercise of powers under section 351 was sought for consideration by the Minister. The first respondent did so, by minute dated 22 September 2002, which read:
Attached is a schedule for cases where requests have been made for the exercise of your public interest power under section 351 of the Act.
These cases have been assessed against the Guidelines and found not to fall within their scope.
If you decide that you may wish to consider these cases or require more information please indicate this on the attached table.
If you decide that you do not wish to consider the exercise of your public interest power, the instrument and letters, where applicable, are attached for your signature.
Three days later, on 25 September 2002, the Minister signed a document which read:
I have read the attached schedule dated 20 September 2002 which has been provided to me by the Department concerning the request by the named persons for the exercise of my power under section 351 of the Migration Act 1958. Unless otherwise indicated on the attached schedule, I do not propose to consider the exercise of that power.
I do not wish further requests for the exercise of my public interest power in these cases brought to my attention unless such further requests provide additional information that, in the opinion of the assessing officer, when considered in combination with the information known previously, brings the case within my Guidelines for the identification of cases where I may consider it to be in the public interest to intervene to substitute a more favourable decision.
The applicant produces in support of her application that part of the schedule referred to in the document signed by the Minister, to which I have just referred, which concerned the applicant’s request for the exercise of powers under section 351. That part of the schedule, together with the document signed by the Minister, was supplied to the applicant’s solicitors pursuant to a freedom of information request.
The grounds stated in the draft order nisi, as most recently submitted, assert error on the part of Mr Nicholls in concluding that the prosecutor was not eligible for consideration by the Minister because the applicant did not fall within the guidelines that had been published by the Minister. That assertion, though amplified a little, does not condescend to particulars of the error in application of the guidelines that it would be sought to assert had occurred. In the course of oral submissions counsel for the applicant contended that the error lay in what was said to be the equivocation contained within the recitation of facts and circumstances affecting the applicant, and in particular, what was said to be a certain equivocation concerning the significance to be attached to her then marital status. It is, in my opinion, unnecessary to explore further the particularity with which the applicant asserts error on the part of the first respondent. The difficulties in the way of the applicant are more fundamental than that.
In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 all members of the Court referred to the difficulties that lie in the way of an applicant seeking constitutional writs or associated relief in cases in which a Minister is given power to substitute, for a decision reached earlier, another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so, but where the statute provides, as does section 351(7), that:
The Minister does not have a duty to consider whether to exercise that power . . . whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
In the joint reasons of Chief Justice Gleeson and Justices McHugh, Gummow, Hayne and Callinan in Applicants S134 (2003) 211 CLR 441 at 461, paragraph 48, it was said:
On the footing that prohibition or injunction and certiorari issue, directed to the Minister, the prosecutors seek mandamus requiring the Minister to reconsider the exercise of his power under s 417(1). However, s 417(7) states in terms that the Minister does not have a duty to consider whether to exercise the power conferred by s 417(1). That gives rise to a fatal conundrum. In the express absence of a duty, mandamus would not issue without an order that the earlier decision of the Minister be set aside. Further, in that regard, there would be no utility in granting relief to set aside that earlier decision where mandamus could not then issue.
Similarly, Justices Gaudron and Kirby in their joint reasons at page 474, paragraph 100, said that:
Given that there is no duty on the Minister to consider an application that he substitute a more favourable decision under s 417(1) of the Act, mandamus cannot issue to compel consideration of the application made on behalf of the prosecutors even if the Minister’s earlier refusal is set aside.
Counsel for the applicant in this case contended that it was important that the application was directed principally at what was said to be the decision of Mr Nicholls that the applicant did not fall within the guidelines which the Minister had issued. It was said that in matters leading up to consideration by the Minister of the exercise of a power under a provision like section 351(1) or section 417(1) there must be scrupulous compliance with the ordinary legal rules and principles. It was said further that here there was, in effect, an exercise in discretionary decision‑making of a kind peculiarly susceptible to review under section 75(v) and that the procedure which leads to that decision must be rigorous and examinable.
There are, in my opinion, at least three difficulties in the chain of argument which the applicant seeks to maintain. First, it is common ground that the “decision” made by Mr Nicholls, if “decision” be the right description of what he did, was not made pursuant to statute. As counsel for the respondents rightly submitted, what Mr Nicholls did was make a recommendation to the Minister. Thus, secondly, even if, contrary to that view, it is arguable that what Mr Nicholls did amounts to a decision, it is not a decision amenable to judicial review, it being a decision not made pursuant to any duty imposed by law. Thirdly, even if the first two points to which I have referred were not sufficient to foreclose the application, what was described in the joint reasons of five members of the Court in Applicants S134 as a fatal conundrum still faces the applicant in the present matter.
There being no duty on the Minister to consider whether to exercise the power given by section 351(1), mandamus would not issue directed to the Minister. I would add that there being no duty imposed on Mr Nicholls to consider the tendering of advice to the Minister, I greatly doubt that mandamus would issue directed to him. Be this as it may, if mandamus will not issue to the Minister to require him or her to consider the exercise of the powers under section 351, there is no utility to be had in granting relief to set aside either a decision by the Minister not to consider exercising the power or any “decision” by an officer who has tendered advice to the Minister concerning the question whether the Minister should consider exercising the power given by section 351.
In all these circumstances, I am of the opinion that the application for order nisi should be refused. If orders nisi were granted, the application for final relief would be bound to fail. That being so, the application is dismissed.
Yes, Mr McLeish.
MR McLEISH: I seek an order for costs.
HIS HONOUR: Yes. Can you resist that, Mr Perkins?
MR PERKINS: No, your Honour. There is one matter, if I may?
HIS HONOUR: Yes.
MR PERKINS: The reasons that your Honour has given, I apprehend, may I say with respect, do not deal with aspects of the matter other than the mandamus and turn very much on the question of existence of a duty. I simply wanted to raise the question whether your Honour was minded to deal with either the revised draft order nisi paragraph 1(a) or an alternative declaration or injunction which it would be contended may be available. I simply wish to raise that with your Honour. I do not purport to be making a submission. If your Honour pleases.
HIS HONOUR: Yes. What do you say I should do, Mr McLeish?
MR McLEISH: In my respectful submission, your Honour, the reasons do deal with the application as framed and the matters set out in the revised order nisi.
HIS HONOUR: Yes, thank you, Mr McLeish.
Lest there be any doubt it, I should add to the reasons earlier given that I am of the opinion that there is no arguable case of any illegality or impropriety of the nature which might attract injunctive relief under section 75(v) of the Constitution. Subject to that, the orders are: application dismissed with costs, including reserved costs, and I will certify for the attendance of counsel.
AT 11.30 AM THE MATTER WAS CONCLUDED
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