Vedamanikkam, Ex parte - Re MIMA

[2004] HCATrans 362

[2004] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M128 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J. VRACHNAS (CONSTITUTING THE REFUGEE REVIEW TRIBUNAL)

Second Respondent

Ex parte –

LLOYD JOSEPH VEDAMANIKKAM

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 21 SEPTEMBER 2004, AT 10.32 AM

(Continued from 29/7/04)

Copyright in the High Court of Australia

MR A.F.L. KROHN:   If your Honour please, I appear for the applicant/prosecutor.  (instructed by Ravi James & Associates)

MR W.S. MOSLEY:   If the Court pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The second respondent, the Tribunal, is a submitting party, I think, is that not right?

MR MOSLEY:   Yes, your Honour.

HIS HONOUR:   Yes, Mr Krohn. 

MR KROHN:   If your Honour please.

HIS HONOUR:   I have, of course, looked again at the papers, Mr Krohn.

MR KROHN:   Yes, your Honour.  This application is now an application for orders absolute for relief, unlike the other two in your Honour’s list today.

HIS HONOUR:   Yes.  Do you in that connection seek to prosecute the ground that was formulated in the order nisi granted on 29 March 2000, which is, I think, the only part of the order nisi remaining undetermined, namely, the ground specified as 1(a).  Two questions in that:  (1) Is that the only question that remains alive?  (2)  If it is, do you seek to prosecute that ground?

MR KROHN:   The only question that is still alive, your Honour, is the question of procedural fairness.  I apologise, your Honour ‑ ‑ ‑

HIS HONOUR:   Can I jump ahead so that you know where I am going.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   My understanding is that you are seeking leave to amend the ground.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Now, is that in substitution for what is there already or do you prosecute what is there already?

MR KROHN:   It is an amendment of that ground.  That ground as formulated included what would perhaps sometimes be put as ground and particulars.  What is, in effect, sought is to prosecute the application on the basis of a different particular of the denial of procedural fairness.

HIS HONOUR:   Just so.  Now, do you need leave to do that?

MR KROHN:   I do, your Honour, and I seek that leave.

HIS HONOUR:   Why should you have that leave, because it is, I think, opposed?

MR KROHN:   It is.

HIS HONOUR:   Is that right, Mr Mosley, is leave to amend opposed?

MR MOSLEY:   Yes, your Honour.

HIS HONOUR:   Yes.  Mr Krohn, step one, why should you have the leave?

MR KROHN:   The application as initially made in the Court has proceeded through a number of steps but it is only now that the Court or the parties have dealt with the ground of denial of procedural fairness.  The application for leave is put on the basis that to allow that amendment will cause no prejudice or difficulty to the respondents and it does simply clarify the matters between the parties in the way that any other amendment would do.  This is not a case where, for example, there had been any argument or procedural step which had been taken by the respondents or, indeed, by the Court on the basis of the ground as originally formulated.

HIS HONOUR:   But it is said against you, as I understand it, that this is an amendment way out of time to wholly recast the case.  Why should you have that leave?  Again, jumping ahead so that you see where the knife may be in the napkin, the fact that the case has gone through the succession of steps it has is, I think, put against you rather than as being understood as something which would warrant the late grant.

MR KROHN:   The case has gone through a number of steps but none of those steps, your Honour, has dealt with this question of procedural fairness.  The steps it has gone through have involved consideration and dealing with and eventually the shearing off of questions related to the section 417 discretion and then what I might call the old Part 8 grounds, the grounds which could be remitted. 

The fact that there have been steps taken in this proceeding in this Court or elsewhere, they have been steps which have not touched upon or raised the consideration of this ground and that on that basis, although as a matter of simple calendar time a great deal of time has elapsed, but, in fact, now that it has been called up for consideration and argument, in my submission, the applicants seek leave to reformulate their complaint about denial of procedural fairness and to allow the amendment would, in effect, in my submission, do justice between the parties and that to refuse it would cause prejudice which cannot be cured for the applicant/prosecutor, but there is no prejudice which the amendment would cause to the respondents which could not be cured by costs, your Honour.  Beyond that, there is nothing further that I can say about that, your Honour.

HIS HONOUR:   What would you say about the arguability of the proposed amended ground?

MR KROHN:   The arguability, your Honour, in my submission, is relevant perhaps to the question of whether the amendment should be granted.  If your Honour were of the view that the proposed amendment was not arguable, then that would be relevant to the question of whether leave should be granted.  So it may be, in my submission, if your Honour is still in some doubt, it would be appropriate for your Honour to consider the arguability of that proposed amendment.

HIS HONOUR:   Why is it arguable?  On its face it strikes me as being open to the criticism that it is no more than a challenge to a particular finding of fact.  Now, is that criticism well founded, not well founded?  Why is this ground an arguable ground?

MR KROHN:   Indeed, it is a challenge to a finding of fact but it is not a mere challenge to that and it is made on the basis that, of course, the applicant understands that this is judicial review; it is not review on the merits.  The Tribunal made, in effect, a very damaging finding that a significant part of the applicant’s case had been contrived and fabricated.  That was a finding which potentially may have changed the decision of the Tribunal.  Had the Tribunal considered, apart from any question of any matters that were particular to this applicant, but when the Tribunal considered the question of risk of persecution to the applicant as a young Tamil, the Tribunal had regard to a number of things, including reports in the country, but also had regard to the fact that on the Tribunal’s finding this applicant had been detained twice but had not been mistreated. 

Now, that was based on the Tribunal’s finding that the claim of mistreatment was contrived; it was contrived because of the Tribunal’s observation about the timing of the explicit statement, “I was mistreated in detention”, but that factor, the timing of the claim, which the Tribunal ultimately regarded as determinative and important in this case, was not, in my submission, a factor which on its face was at all a matter that was obvious to the applicant and, in my submission, it is arguable that, as a matter of fairness, the applicant was entitled to have his mind directed to the question of the timing of his claim so that he could realise or hear something that the Tribunal is concerned about, “Well, I need to say something about that”.

It is always, your Honour, a difficult question drawing the line in any particular case between what procedural fairness might require and what it does not.  My learned friend in his submissions has referred to Alphaone which is a convenient statement of principle, but the question here, your Honour, is perhaps a question, what side of the line does it fall?  Here, in my submission, when the Tribunal did not say anything to alert the applicant to the fact that the Tribunal might consider the timing of the claim of beating in detention to be a critical matter going to the credit of the applicant, then, in my submission, it is a question of procedural fairness and the ground sought to be argued on the amendment is arguable.

HIS HONOUR:   If you take Alphaone as a convenient statement, how do you apply what there is said to the case which you seek to mount?

MR KROHN:   I think my learned friend has referred in his submissions to the relevant page, which is ‑ ‑ ‑

HIS HONOUR: Paragraph 13 of his submissions, which is 49 FCR 576 at 591 to 592.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   How is that passage engaged in this case?

MR KROHN:   I will just check to see whether my learned friend’s quote extends as far as – is your Honour looking at the quote in the respondent’s outline?

HIS HONOUR:   Yes, and I have the Federal Court Report open at the same time.

MR KROHN:   Perhaps then if your Honour looks at 49 FCR 576 at 591C, there is reference first to:

if information on some factor personal to that person is obtained from other source –

that does not apply here.  There is the general observation that:

Within the bounds of rationality a decision‑maker is generally not obliged to invite comment on the evaluation of the subject’s case.

But then, if your Honour goes down to the qualifications drawn by the court from Somaghi, just above E:

The general propositions set out above may be subject to qualifications in particular cases.  Two such qualifications were enunciated by Jenkinson J in Somaghi at 108‑109:

1.        The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it:  Kioa v West . . . 

2.        The subject is entitled to respond to any adverse conclusion drawn by the decision‑maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material.

In my submission, both of those qualifying propositions are engaged in this case.  In my submission, first, the timing of that claim of beating in detention did turn out to be a critical factor.  If one leaves aside any question of particular involvement say with the LTTE and then focuses, as the Tribunal had to do, on the general claim of risk of persecution as a Tamil, then the fact that the Tribunal regarded the timing of the claim of beating as ultimately determinative of the Tribunal’s finding that that claim was fabricated, that in turn had a very strong bearing, in my submission, and possibly determinative, on the Tribunal’s conclusion about whether the applicant would be at risk simply as a Tamil on return.

So the first qualifying proposition, in my submission, is engaged.  Secondly, in my submission, the timing of that claim, although that was on material supplied by the subject of the decision, it was, in my submission, not an obvious and natural evaluation of that material.  It was an approach which the Tribunal could take.  Tribunals naturally can and do focus their minds upon the correlation between all sorts of pieces of evidence, but in this case, in my submission, it was not sufficiently an obvious or clear matter that the Tribunal was not obliged to draw attention to.

HIS HONOUR:   Let it be assumed that that were so – it may be a large assumption – what would the consequence of drawing it to attention be?

MR KROHN:   The applicant would have been able to draw attention to the timing of his initial claims.  In this case, when the matter went before the delegate of the respondent, initially at that interview the delegate responded to a reference to the applicant’s detention by saying, “This is a new claim”, but then checked the file and said, “Well, no, at least so far as the detention goes, that is not a new claim”. 

The applicant also in his affidavit filed in this matter in August deposes to the fact that when he put in the information in support of his application he put in a great deal of information relating to treatment of people in detention and that what he could have said to the Tribunal, and it would then have been for the Tribunal to evaluate, would be say to, “Look, I made a claim that I was detained.  Yes, I did dot the ‘i’ and cross the ‘t’ eventually and say I was beaten in detention, but if you had asked me what happened in detention or if the delegate had asked me what was the detention like, of course, this is what I would have said.  I didn’t think I needed to say that because I put in all the material about what is the usual thing that may be expected for Tamils in detention.”

Now, whether the Tribunal would have been swayed by that or not, we do not know.  That is a matter for the Tribunal, in my submission, on reconsideration of the matter.  But it is submitted, your Honour – and your Honour will have seen the affidavit that was filed on 16 August this year and at paragraph 10 – perhaps I will take your Honour first to paragraph 7:

I submitted additional material about the arbitrary arrest, detention and treatment of Tamils, particularly in Colombo, to the Tribunal.  The Tribunal did not make any inquiries from me about the arrest, detention or treatment I underwent . . . 

8.        Along with my statements I submitted substantial material on the arrest, detention and mistreatment of Tamils, both to the delegate and to the Tribunal.  I depended that both the delegate and the Tribunal, apart from this information submitted by me, would be generally aware of what happened to Tamils and would take that into account about what was undergone by me during such arrest and detention.

9.        Had the delegate or the Tribunal asked me to speak in detail . . . I would have narrated my experiences -

There is some detailed material in paragraph 10 about harm that the applicant witnessed and harm that the applicant underwent while in detention, details of which the applicant could have given to the Tribunal.  So it is put in that way, your Honour.

HIS HONOUR:   Yes.

MR KROHN:   If it is of assistance to your Honour, I can take your Honour to detailed passages in the delegate’s interview and the Tribunal hearing to illustrate the points that the Tribunal did not ask about the conditions of the detention and did not put the question of timing, but it depends whether your Honour would find that a helpful matter.

HIS HONOUR:   Yes.  The immediate question seems to me to be, first, this question of amendment and, if there is further material you seek to point me to, I understand you to say that there is nothing in those earlier steps which show the applicant being asked about what happened in detention.

MR KROHN:   No, your Honour.  The first explicit reference to the beating in detention was made in a supplementary handwritten statement that was put as annex B to the applicant’s outline of submissions that were filed in July.

HIS HONOUR:   Is that evidence before me?

MR KROHN:   It has not been exhibited, your Honour.  My understanding is that it was not a matter in dispute between the parties.  It is correct, as the Tribunal said, that the reference was to detention in the initial written submissions that supplemented the application form.  There is a further exhibit – perhaps I will take your Honour to LJV‑27.  That was also exhibited to the applicant’s recent affidavit.  That is a transcript of the hearing that was conducted by the delegate.

HIS HONOUR:   Yes.

MR KROHN:   Beginning at page 20, your Honour, there are some relevant passages where evidence was given, line 32:

When I was there I was arrested twice.  I was arrested in November.

MS RODRIGUEZ-ORONA:   Sorry, this is a new claim.  Just hold on for a second, please.  I just want to make sure that I’ve read this entire case.  No, no, sorry, you did say you were arrested on two occasions and you were released after your uncle paid money for that, yes.

Then over the page, your Honour, there was a reference again – there was no question there about the nature of the detention.  Page 21, line 41 there is a statement by the interpreter interpreting the applicant:

They’ve arrested me in November---

MS RODRIGUEZ-ORONA:   But you were arrested for two days and were released each time and you were quite established in Colombo.

Then line 21:

In November, the month of November when I was arrested and I decided in January that I must go –

again, just that brief reference to arrest.  Then the interviewer on page 23 says at lines 10 to 11:

What you’re telling me is that after your arrest in November you were a bit concerned about the situation so that you were iffy about it .

And then there is a reference to beating in an answer given by the applicant on page 25.  This was in response to the question at about line 8 and following – this was to do with the claim of involvement of the applicant with particular members connected with the LTTE, but then at line 15 the applicant said:

When you’re a Tamil it doesn’t matter where you come from, which area you come from.  There’s a lot of atrocities; bombing and whatnot that happens in Colombo and it’s always Tamils are suspected and there’s no protection for Tamils.  Twice when I was captured I was beaten badly and (indistinct) after this I thought I would like to leave the country.

So there is evidence before the Court that was put before the Tribunal.  That was on 26 September 1996.  In the context of the chronology of this claim, the application for protection visa was made on 29 July 1996, one month later, and there is a reference in paragraph 2 again of the recent affidavit of the prosecutor to the submission that was sent on 27 August.  The interview was on 26 September.

HIS HONOUR:   How does this bear on the proposed amended ground?  What is the want of procedural fairness that is alleged?

MR KROHN:   That in the context where the time that elapsed between the making of the initial application for a protection visa and the explicit statement about beating and detention was two months.  In my submission, that does go to the arguability of the fact that if the Tribunal regarded the timing of the explicit statement about the beating as a matter of issue, the Tribunal ought to have put that for comment to the applicant.  That is how it is put, your Honour.

HIS HONOUR:   Yes.

MR KROHN:   That is all that I can say in relation to the amendment question.  Does your Honour desire me to go on to the other points or ‑ ‑ ‑

HIS HONOUR:   What do you say?  Do you say I should deal separately with this question of amendment or should I not?

MR KROHN:   In my submission, the proposed amended ground is arguable and that it is appropriate that your Honour should simply proceed and deal with the application.

HIS HONOUR:   Mr Mosley, what do you say?  Do you say I should treat separately this application for amendment?

MR MOSLEY:   Your Honour, we consider that it is an amendment that, if your Honour wishes me to go into it in depth ‑ ‑ ‑

HIS HONOUR:   No.  Do you say I should treat the application for amendment separately from the principal application or should I hear them both together?

MR MOSLEY:   I think probably it is appropriate if it be considered separately, your Honour, having in mind ‑ ‑ ‑

HIS HONOUR:   Yes.  What do you want to say about it?

MR MOSLEY:   Your Honour, it again crosses over to some extent, but the submission we make principally in relation to the matter is that the application was made on – the order nisi application was made on 16 December 1999.  It is not now, until some four years and eight months after the application was originally made to the Court, that any amendment is sought to change the basis upon which the procedural fairness claim is put and, in our submission, your Honour, it is put on a very different basis to the basis upon which your Honour granted the order nisi on 29 March 2000.

HIS HONOUR:   Let that for the moment be assumed.  What is the consequence of the lateness?  Why is that significant?

MR MOSLEY:   To this extent, your Honour.  It may be that it could have been put as a ground under 476(1) in the way it is now framed, because if one looks at the way that it was originally put in the draft order nisi:

The Second Respondent failed properly to exercise his jurisdiction in that the rules of natural justice or procedural fairness were breached, or alternatively failed to take relevant consideration into account, in that in making the decision, the Second Respondent failed to make all due and proper inquiries as to the truth of the claims of the Prosecutor/applicant and in particular, failed to utilise mechanisms available within the Tribunal whereby the Prosecutor/applicant’s claims as to the current situation in Sri Lanka and the impact of that situation upon him could have been readily assessed.

It is now put the Tribunal did not give the prosecutor any or any proper opportunity to know and to respond to the significance of the time when the prosecutor first claimed to have suffered ill‑treatment in detention.  That is putting the matter on a totally different basis.  It may be that that may have been able to be put as an error of law, it may have been able to be put as a breach of procedure, therefore, it may have been a matter that could have been referred to Justice Ryan or referred to the Federal Court and dealt with by Justice Ryan pursuant to your Honour’s order remitting part of the matter at an earlier stage.

HIS HONOUR:   Now, it seems to me, since I must adjourn presently, that one must begin from Order 55 rule 11, “APPLICANT LIMITED TO GROUNDS AND RELIEF SET OUT IN ORDER NISI”.  Order 55 rule 11(2):

The Court or Justice may allow an amendment which it or he thinks necessary for the advancement of justice, but, without the leave of the Court or Justice, a ground shall not be relied upon . . . other than a ground set out in the order nisi or notice of motion.

From there, it seems to me, account must be taken, perhaps, of the provisions of rules 17 and 30 concerning the time limits.  Now, the immediate question is, how does Order 55 rule 11(2) intersect with, if at all, Order 55 rule 17(1), which prescribes a six‑month limit, and Order 55 rule 30, which prescribes a two‑month limit for mandamus, understanding that there is no time limit for prohibition but the availability of prohibition is a matter which was considered by Justice McHugh in Re Ruddock; Ex parte Reyes 177 ALR 484 and has been followed by me subsequently.

Now, those are questions which we will perhaps take up on resumption at 2.45.  Adjourn until 2.45.

AT 11.04 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.45 PM:

HIS HONOUR:   Yes, Mr Mosley.

MR MOSLEY:   Your Honour, having given further consideration to the matter that your Honour raised at 11 o’clock this morning and having an eye on the time and what have you, it would seem to me that I have sought to have your Honour do what is perhaps inappropriate, particularly having in mind, having had a look at Order 55 rule 11(2), that in order to consider whether it is necessary for the advancement of justice that the amendment be allowed, it would be appropriate that we determine the whole matter before resolving this issue or hear argument on the whole matter before determining this issue, particularly having in mind the issues that ‑ ‑ ‑

HIS HONOUR:   Is there no authority that bears upon whether amendment should go which would recast the case entirely after the time limit has expired?

MR MOSLEY:   Not that I was able to dig up in the time available, I have to say, but the whole issue of delay, of course, is ‑ ‑ ‑

HIS HONOUR:   Leave aside discretionary bars.  I understand those.  I would have thought that there may – there may not – be some authority that bears upon the grant of amendment in a process of this kind after the time fixed.  Why is the rule in Weldon v Neal not engaged?  Perhaps it is not.  I wait to be instructed and enlightened.

MR MOSLEY:   Well, your Honour, in determining whether it is necessary for the advancement of justice, that would be one of the matters that your Honour ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.  Let us go back to basics.  Ordinary common law Procedure Act set of rules.  You have an amendment provision in there which says ordinarily, “Grant such amendment as is necessary to meet the justice of the case, determine the true issue, et cetera” – a common form amendment provision.  Yet the rule in Weldon v Neal that you cannot amend after time expired to introduce a new cause of action emerged in the face of that common form amendment rule.  Here we are in a different field of discourse, perhaps – I do not know – where order nisi granted, order nisi granted on one set of grounds.  At its starkest, it seems that the ground initially propounded is not pressed, and now a new ground is proposed however many years we are past the time fixed.  It would surprise me were there were not some authority, some principle, which bore upon it.

MR MOSLEY:   Well, your Honour has tried to say that it goes to the – as I said to your Honour, the issue of discretion about whether it is in the interests of justice, having in mind the four years and eight months or whatever it was I referred to your Honour this morning, that an amendment be allowed in the circumstances.  So there is that and the fact, of course, that the applicant has not really provided any satisfactory explanation for the delay.  He simply says, “Sorry for the amendment or the delay in seeking the amendment”, which is another factor that is relevant in the mix, if you like, of determining whether it is in the interests of justice, but I am not able to point your Honour to any relevant authority.

HIS HONOUR:   The notion that this is some undifferentiated mix of discretionary factors is simply not right.  There are principles which are engaged, they are capable of discernment, and what I am looking for is assistance and instruction about them.  It is not just an undifferentiated mix of the intuitive unformed sense of justice of the Judge.

MR MOSLEY:   Well, your Honour, I would need to consider at greater length authorities on that issue, but the submission I would make to your Honour is that it may not be necessary, perhaps, to do so, if your Honour was not satisfied in any event that the delay generally in the institution of the application for prerogative relief or the substantive basis upon which the application is put.  So, if my learned friend cannot convince you about those matters, in any event, that may be adequate to satisfy your Honour.

HIS HONOUR:   Yes.

MR MOSLEY:   But it just seemed to me, your Honour – and I hear what your Honour says with respect to that, with respect, but whether it is necessary for the advancement of justice somewhat requires a consideration of the case generally that my learned friend wants to put in terms of determining whether that amendment ought be allowed.

HIS HONOUR:   Now, if I embark on the trial of the whole issue – let me understand what is involved in that – first, is there to be any cross‑examination of any deponent?

MR MOSLEY:   No, I do not think so, your Honour.

HIS HONOUR:   We are to argue out the whole of the remainder of the application on what basis?  On the basis that, what, the formerly founded

ground is not pressed but a new ground is?  What would be the ground rules on which I would determine the whole proceeding?

MR MOSLEY:   Well, if your Honour dealt with the matter on the basis upon which my learned friend seeks to argue it and determines whether there was anything in that ground, then the issues of delay and discretion are pertinent to a consideration of that ground.  If your Honour was not satisfied as to that – he acknowledges that he needs leave to do so, to argue that – then your Honour could dismiss it without having to determine the issue of the amendment.

HIS HONOUR:   Yes.  Well, Mr Krohn, what further argument would you be seeking to advance were I to embark upon the course propounded by Mr Mosley?

MR KROHN:   I would have to say something, your Honour, about the question that your Honour has raised about amendment and the Rules.

HIS HONOUR:   Are you in a position to do so?

MR KROHN:   I would then be ‑ ‑ ‑

HIS HONOUR:   No, are you in a position to do so?  Are you able to point me to the relevant authorities?

MR KROHN:   All that I can say, your Honour, is that, in my submission, the rule in Weldon v Neal covers cases where what is sought to be circumvented is effectively a statute of limitations situation.

HIS HONOUR:   What is the effect of the rule?

MR KROHN:   The effect of Order 55 – the three rules are somewhat different, your Honour.  Order 55 rule 17(1) is stated simply as an absolute.

HIS HONOUR:   Yes.

MR KROHN:   Order 55 rule 30 for mandamus is stated with an explicit provision for an allowance of further time, as may be “allowed by the Court or a Justice”.

HIS HONOUR:   “[U]nder special circumstances”.

MR KROHN:   Yes, “under special circumstances”, I accept that, your Honour, and there is no time limit in relation to prohibition.  I have heard what your Honour says about Reyes and the question whether that is an appropriate form of relief.  But, in my submission, this is a different situation from a prohibition by statute of embarking upon a cause of action beyond that time fixed in a statute which is controlling that kind of proceeding, that here, in my submission, the Rules of the Court are to be construed also in context with Order 60, the power to enlarge.

Order 55 rule 11 itself suggests by implication that there are circumstances where amendment may be granted, but the very form of Order 55 rule 11 suggests that to that extent what the applicant seeks to do in the present case is something that the Court may allow in circumstances where the Court considers that it is just.

The other matter that I would urge upon your Honour in relation to this is that, in effect, the amendment which is sought is the addition of a different particular.  It is not, in essence, the urging of a different ground of judicial review; it urges the denial of procedural fairness, and that was what was put in the beginning.  So to that extent, your Honour, in my submission, it is a less ambitious and grave matter than to be seeking to substitute a different ground of judicial review.  To that extent, your Honour, it is perhaps relevant that the word “ground” is used in Order 55 rule 11(2).  I do not refine too much upon that because it is not cast in terms of “grounds and particulars”, but it does suggest at least that what is referred to is a major heading.

To return to your Honour’s earlier question, to embark upon the argument in this matter requires going to the Tribunal decision ‑ ‑ ‑

HIS HONOUR:   How long would this process occupy?  How much time do you require to make your argument in support of the ground which you propose?

MR KROHN:   I would say of the order of an hour, your Honour.  It might be plus or minus.

HIS HONOUR:   Yes.  Let us begin it and let us begin from this premise:  (1) the contention, as I understand it, is that the Tribunal did not give the applicant proper opportunity to know and respond to the significance of the time when the prosecutor first claimed to have suffered ill‑treatment in detention.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   The fact is the Tribunal found that failure to refer to mistreatment in the initial application led it to the finding that the claim of mistreatment was manufactured.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   What further elucidation of the ground do we need?  Why is that a breach of procedural fairness?  I know you say you want an hour.  What I want to know is, what more is there to be said?

MR KROHN:   Perhaps I have taken your Honour to part of that matter this morning.  I have referred your Honour to the principles in Alphaone which I submit do apply to the present case.

HIS HONOUR:   Yes.

MR KROHN:   When one puts to one side the other part of the applicant’s claims before the Tribunal, what remains is, in my submission, a critical matter, and that was whether the Tribunal believed that the applicant was mistreated in detention.  It was also a matter which went generally to the applicant’s credit, which was a basis of rejecting the particular claims also.  I do need to be clear in case I gave a wrong impression before lunch that ‑ ‑ ‑

HIS HONOUR:   Look, Mr Krohn, I am not trying to cut you off, I am not trying to terminate your argument.  Do not misunderstand me.

MR KROHN:   No, I understand.

HIS HONOUR:   What I am trying to understand is, what more is there to it than what we have discussed?  If there is more, tell me.

MR KROHN:   Perhaps there is not so very much more, your Honour.  I do need to clarify, in case I did mislead your Honour, that the delegate’s decision did reject the claim of mistreatment in detention and did so on the basis, as the respondent said in her submissions, in part of the way in which that claim was put, paragraph 16.  The respondent’s contentions are correct in that respect.

HIS HONOUR:   I understand that as being a submission that the applicant knew from what the delegate had done that a live issue before the Tribunal was whether his assertion of mistreatment in detention would be accepted.

MR KROHN:   Yes, your Honour.  The delegate’s decision is not before your Honour, but it is fair to say that the delegate did reject that claim to have been beaten in detention as a fabrication which had been made to further the claim.

HIS HONOUR:   Now, if that is a finding which the delegate makes, what should the Tribunal have done to accord procedural fairness to the applicant that it did not do?

MR KROHN:   It should have alerted the applicant to the fact that in the Tribunal’s mind the question of the time of the claim of beating in detention was something that raised for the Tribunal a question of the applicant’s credit as to that claim and generally.  The Tribunal should have said, “Look, why should I believe you?  You are bringing this up now to patch up an application and make it look better after the event”.  I can, if your Honour should need, take your Honour to a copy of the Tribunal transcript to show that it was not put in that way, but I do not understand there is a contest between the parties as to that.  Perhaps that is all that there is to be said, your Honour.

HIS HONOUR:   Yes.

MR KROHN:   I might check, if I might – I took your Honour to the applicant’s affidavit filed in August of this year before lunch.  Perhaps the other thing that ought to be said, the Minister’s contention submitted that the principles relevant to the exercise of discretion whether to grant relief or not are akin to those applicable to applications for enlargement of time under the High Court Rules.  I would submit, your Honour, that there is a significance difference. 

The first is that when enlargement of time is sought – and, in my submission, that is no longer an issue, save as to the question of the view your Honour takes on the question of the amendment, but the application itself – an enlargement of time to bring an application is an indulgence of a different kind from an inquiry by the Court as to whether there are grounds to refuse relief if jurisdictional error is made out.  If your Honour were satisfied that there had been a denial of procedural fairness, then, in my submission, it is clear enough from, for example, what the Court said in Aala, including your Honour, the Chief Justice and Justices Gaudron and Gummow, that a denial of procedural fairness is a jurisdictional error and ordinarily prohibition would follow.

There are passages in the joint judgment of Justices Gaudron and Gummow between pages 106 to 109 on the question of whether prohibition would issue, whether there would be circumstances in which it might be refused.  The phrases used are that if jurisdictional error is established, then the remedy would flow almost as of right, subject to inquiry into questions about whether, for example, there might be futility in giving the relief or as to unwarrantable delay or some bad faith on the part of the applicant or similar matters.

The point I desire to put before your Honour is that that is a different inquiry.  It starts on the premise that if there was jurisdictional error, relief should flow, unless there is a reason why it ought not.  That, in my

submission, is a different thing from the proposition put by the respondent, that the question of discretion to grant relief is akin to the question of whether to grant enlargement of time to bring an application. 

The Tribunal decision was exhibit LJV10.  In that decision, the Tribunal made it plain that when it considered the risk to the applicant in the context of the claim of being a Tamil it took into account both the general information about the country and also the fact that, according to the Tribunal’s findings, the applicant had not been harmed.

My learned friend did say before your Honour’s adjournment that the amendment perhaps raised a question of prejudice because had it been made earlier, then perhaps this part of the application might have been remitted to the Federal Court.

HIS HONOUR:   I need not trouble you on that aspect of the matter.

MR KROHN:   If your Honour please.  Then perhaps, your Honour, it has been a fairly brief hour.  May it please the Court.

HIS HONOUR:   Yes.  Yes, Mr Mosley.

MR MOSLEY:   Your Honour, I think our written submissions cover the matters that I wish to put to the Court, save that I would emphasise – and as my learned friend has put to your Honour this afternoon – that the delegate did specifically accept that the applicant was detained but did not accept, in the same way as the Tribunal did not accept, that he was beaten in detention.  So the issue was a live issue, so I would emphasise that to your Honour. 

Secondly, your Honour, the applicant was at all times represented by a solicitor and migration agent at the Tribunal hearing and at the hearing before the delegate, as your Honour will see from the transcript before your Honour.  I have referred to the authorities in our submission.  In our submission, it was not incumbent upon the Tribunal to put matters going to credit to the applicant for comment.  I have referred your Honour to your Honour’s decision in Abebe and the Full Court’s decision in Abeysinghe.  Unless there are any other matters – as far as the discretion is concerned, does your Honour wish me to address you any further in relation to the discretion?  I have set those matters out in our written submissions.

HIS HONOUR:   Unless there is something extra you wish to add ‑ ‑ ‑

MR MOSLEY:   No, your Honour, there is not.

HIS HONOUR:   Yes, all right.  Yes, Mr Krohn.

MR KROHN:   Just very briefly, your Honour.  In relation to the applicant being on notice, your Honour, the review by the Tribunal is a review de novo.  There is no expectation that the Tribunal is going to adopt the same methodology as the delegate.  The Tribunal is completely free in the way that it goes about it, and if the Tribunal does not indicate that it has some concerns, in the way that the applicant has submitted it ought to, what the delegate did, in my submission, does not foreclose the issue or absolve the Tribunal from that.

In relation to the authorities to which my learned friend referred, Abebe and so on, each case, in my submission, has to be dealt with on its particular facts and merits.  In this particular case, in my submission, the timing of the claim was something which ought to have been put.

In relation to the discretion, I note what my learned friend says in his submissions and I note your Honour’s reference to Re Ruddock; Ex parte Reyes relating to the question of the issue of prohibition.  I note that your Honour yourself has followed that view.  I am sorry – I beg your Honour’s pardon and my learned friend’s – I ought to have mentioned perhaps earlier the case of Thayananthan, a judgment of his Honour Justice Merkel, in which his Honour discussed and considered ‑ ‑ ‑

HIS HONOUR:   What is the reference to that, please?

MR KROHN:   Your Honour, as far as I know, it is still unreported.  It is No 6 on the applicant’s list, Thayananthan.  Does your Honour have a copy?  I have a copy I can hand up, if ‑ ‑ ‑

HIS HONOUR:   Like all judges, I have managed to eat the three copies I have been given.

MR KROHN:   I hand your Honour a copy.

HIS HONOUR:   The capacity of judges to lose papers is boundless, outdone only by the capacity of senior counsel to lose what their juniors give them.  Yes, you had better hand up another.

MR KROHN:   I think I am capable of losing a great deal, your Honour.  This was a case, your Honour, where his Honour considered the submission by the Minister, upon a remitter, concerning the discretion relating to the issue of prohibition.

HIS HONOUR:   It is not a question of discretion about prohibition.  Who are you prohibiting from doing what?

MR KROHN:   Yes, your Honour.  In the present case, your Honour, I must note that ‑ ‑ ‑

HIS HONOUR:   The Tribunal is functus, it is complete, nothing left to prohibit.  While the Tribunal’s decision stands, why do you prohibit the Minister?  You might enjoin the Minister.  You cannot prohibit the Minister from giving effect to the provisions of the Act.  What is the particular passage of Justice Merkel’s judgment to which I should have regard?

MR KROHN:   It begins at paragraph [14], your Honour.  There is an analysis by his Honour from [14] to [26], but then his Honour at paragraph [27] says that:

There is nothing in the foregoing analysis that would require prohibition to be regarded as ancillary to mandamus.  Rather, prohibition is a primary remedy under s 75(v) (see Aala at 90 [13]) and it would be erroneous to dismiss a proceeding in which prohibition is properly being sought against the Minister on the ground that the writs of mandamus and certiorari, which are also being sought, are out of time.

There is reference at paragraph [25], your Honour, at the top of page 10 of that printout that:

In Aala the High Court found the Tribunal exceeded its jurisdiction by denying procedural fairness and, as a consequence, issued a writ of prohibition prohibiting the Minister “from taking action” on the Tribunal’s decision.  Certiorari was issued “[i]n aid of that prohibition” –

My submission, your Honour, with respect, is that that is a correct view and it is appropriate that there should be prohibition against the Minister in a case where the Tribunal is in jurisdictional error, because ‑ ‑ ‑

HIS HONOUR:   Even though certiorari will not lie to quash it?

MR KROHN:   No, your Honour.  If there is jurisdictional error and certiorari lies, then ‑ ‑ ‑

HIS HONOUR:   The case to consider is where certiorari will not go, because sought out of time.  If certiorari will not go to quash the decision, why would prohibition go to the Minister?

MR KROHN:   The analysis, your Honour, in my submission, should be that if there was jurisdictional error, then it is appropriate that there should be prohibition to prevent the Minister from acting upon it, and then it is

appropriate that there should be certiorari as ancillary relief.  That is the thrust of the analysis in Thayananthan. 

When viewed in that way, your Honour, and bearing in mind that prohibition and mandamus are primary forms of relief, being mentioned in 75(v) whereas certiorari is not, then if there are grounds for the grant of prohibition because there was jurisdictional error, then, in my submission, if it is a case of delay, if the delay is not such as to urge the Court in the exercise of discretion to withhold prohibition, then it ought to follow by comity and logic that it is an appropriate case to allow the enlargement of time for certiorari.  To the extent that that is a different approach from Reyes, I do submit that that is a proper approach, may it please the Court.

HIS HONOUR:   Yes.

MR KROHN:   There was perhaps one other point.  It is really addressing the proposition in paragraph 26 of the respondent’s contentions concerning section 417 and action taken requesting the Minister under 417 as not being a sufficient explanation for not instituting proceedings.  I note that there is a long list of cases where that approach has been followed.  As far as I can see, your Honour, they are single judgments. 

When Parliament has provided in the same Act for the possibility of judicial review and for the possibility of seeking, effectively, relief under section 417, in my submission, if an applicant takes the course of seeking relief under section 417 discretion, that is adopting one course that has been provided by Parliament, and, to that extent, it ought to be taken into account in considering whether an applicant has delayed or not in coming before this Court, given also the question of the workload of the Court and so on.  So the proposition is that it would be wrong to put out of consideration a request under section 417 as something which is simply irrelevant to a question of delay.  May it please the Court.

HIS HONOUR:   I will consider my decision in this matter.

MR MOSLEY:   Can I just make ‑ ‑ ‑

HIS HONOUR:   Yes.

MR MOSLEY:   I am sorry, your Honour.  Just in relation to Thayananthan, I wanted to make, if I might do so, having in mind my learned friend did not address this earlier, Justice Merkel did say at paragraph – well, two points.  I should start at the beginning.  The first point is that in this matter, as far as I can see, no relief is sought against the Minister in any event.  That is a primary point.  The second point is that Justice Merkel accepted at paragraph [26] that:

The Tribunal stands in a different position because it has no further role or function in relation to a decision once it has been handed down so there may be nothing left to prohibit it or its members from doing –

which seems to answer the matters that my learned friend was putting to your Honour in relation to the relief sought in this matter.  Thank you, your Honour.

HIS HONOUR:   I will, as I say, consider my decision in this matter.

AT 3.23 PM THE MATTER WAS ADJOURNED