Salew, Ex parte; Re McNaughton & Anor S76/1995 [1995] HCATrans 291 (1 September 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S76 of 1995

In the matter of -

An application for writs of mandamus and a writ of prohibition against THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

BRONWYN McNAUGHTON

Second Respondent

Ex parte -

NEGHISTI SALEW

Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 SEPTEMBER 1995, AT 9.35 AM

Copyright in the High Court of Australia

MR T.A. GAME: If your Honour pleases, I appear for the prosecutor, together with my learned friend, MR G. CRADDOCK. (instructed by Kessels & Associates)

MR R.R.S. TRACEY, QC: If your Honour pleases, I appear with my learned friend, MR R.T. BEECH-JONES, for the proposed respondents. (instructed by the Australian Government Solicitor) Our justification in being here principally is because the question of remittal is in issue, but we might, if your Honour gave us leave - - -

HER HONOUR: There is a preliminary point, surely, is there not? There is a preliminary point whether there is anything to remit.

MR TRACEY: Indeed, your Honour, and that is - - -

HER HONOUR: You can certainly be heard on that.

MR TRACEY: We are available if we can assist your Honour.

HER HONOUR: Thank you, Mr Tracey. I think I should tell you this, Mr Game: the Court's power of remitter, so far as I can tell, is conditional on there being something to remit, that is to say that one would have to persuade me either that I am wrong on that or that an order nisi should be granted.

MR GAME: Your Honour, from a practical point of view I am content to argue the matter on the basis, either that an order nisi should be made - - -

HER HONOUR: And then remitted?

MR GAME: Yes, or, if your Honour is not prepared to make an order nisi, that the matter does raise questions of sufficient importance to warrant the matter being referred to a Full Court under Order 55 rule 2. So I am content to argue the matter on the basis that the question whether or not there should either be an order nisi or a referral be argued first.

HER HONOUR: Yes, thank you.

MR GAME: And then to deal with the question of remittal after that.

HER HONOUR: Yes. There is no objection, I take it, Mr Game, to Mr Tracey making submissions on all matters?

MR GAME: No, your Honour. Your Honour, I had intended, as you may have gathered from the written submissions, to commence with the question of remittal, but I will take your Honour directly to the substance of the matter.

Before the Court is an application pursuant to Order 55 rule 1 for orders nisi for writs of mandamus and a writ of prohibition directed to the Minister for Immigration and Ethnic Affairs and to Bronwym McNaughton. The application is brought pursuant to the original jurisdiction of this Court under section 75(v) of the Constitution. It is brought in this Court because of statutory constraints contained in the Migration Act to which I will refer.

HER HONOUR: Firstly, what is the decision of the Minister in respect of which you seek mandamus and prohibition?

MR GAME: Your Honour, the way I would characterise the decision is this: it is a purported decision under section 417 of the Migration Act. It is our argument that there has been no decision whether or not to consider the exercise of the power, so that there has been no lawful decision by the Minister under section 417.

HER HONOUR: It is really Ms McNaughton's decision you want to attack.

MR GAME: It is Ms McNaughton's decision but - - -

HER HONOUR: And is not hers reviewable?

MR GAME: If her decision is reviewable then we are constrained - if it is her decision then we are constrained by section 476 of the Migration Act. If it is her decision - could I take your Honour to sections 475 and 476?

HER HONOUR: Yes.

MR GAME: Section 475(1)(c) refers to:

other decisions made under this Act, or the regulations, relating to visas.

The application that was made to the Tribunal was for a protection visa and her decision, whether it be lawful or not, has the effect of preventing an application to the Minister in relation to a protection visa.

HER HONOUR: Has she not made a decision not to refer it to the Minister?

MR GAME: Yes.

HER HONOUR: Is that not your case?

MR GAME: Yes. Now, your Honour - - -

HER HONOUR: Why does it not come straight within (c)? You say it is taken out of it?

MR GAME: It may, your Honour. It may come straight within (c), but if it does, if it is a decision made under this Act relating to visas, then your Honour, our relief, if our relief in the Federal Court is constrained by section 476 and it is constrained - - -

HER HONOUR: Why?

MR GAME: Because section 476(2)(a) and (b) provides that the grounds upon which an application may be made are not to include:

a breach of the rules of natural justice -

and that is one of the central grounds of our application in relation to her; (ii) Wednesbury unreasonableness - that is another of the principal grounds in relation to her, and then (iii) - - -

HER HONOUR: The grounds of review here are constrained anyway. They are limited to jurisdictional error. If you proceed on mandamus and prohibition, you must show jurisdictional error.

MR GAME: Your Honour, in a sense it may be six of one and half a dozen of the other, but could I just take you to the next provision. Subsection (3)(e):

The reference in paragraph (1)(d) to an improper exercise.....

(e) failing to take a relevant consideration into account - - -

HER HONOUR: It is not excluded, is it?

MR GAME: It is excluded.

HER HONOUR: No.

MR GAME: "but not as including a reference to:" now, that is our case. In relation to mandamus in this Court it would be my argument that the Court would not be restrained in the same way as - - -

HER HONOUR: Mandamus and prohibition go only for jurisdictional error. That much is clear.

MR GAME: I mean it always depends how one characterises the jurisdictional error and whether or not there has been a proper exercise of the power, whether or not she was entitled, in effect, to take away the decision from the Minister. And that is really at the heart of our case. Now, we get caught up into difficulties in either jurisdiction but our fundamental point in the case is that the Department cannot prevent applications being brought before the Minister's notice for his determination whether or not to consider. Otherwise the discretions contained within section 417 of the Act might never come to be exercised and these provisions, section 476, takes away much of the substance of our case in relation to the second respondent, however one puts the case.

And it does make the assumption that it is correct to say that her decision, which is nothing more than a decision not to bring to the Minister's attention - - -

HER HONOUR: Why is that not a decision, on your argument, that comes within 476(1)(c).

MR GAME: It might be necessary for us to argue that it is and on one view that is the case, but it depends whether or not one construes it as a decision relating to a visa. Strictly speaking, decisions relating to visas are decisions relating specifically and administratively to the grant of visas under the Act, whereas this is a decision which is a decision which, in effect, prevents the bringing of an application to the Minister. It is really a question of how widely one construes the words "relating to" in that context because it is not strictly speaking a visa application or anything of that kind.

Section 485 is the other relevant jurisdictional provision. Section 485(1) in effect cuts down section 39B and goes on to say that:

the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475(2).....other than -

under the Act. So the other difficulty which we may have is this, your Honour, which is if the decision is construed, as no doubt the first respondent might seek to argue as a - - -

HER HONOUR: You have really got to identify the decision that you wish to attack, have you not?

MR GAME: Your Honour, in my submission there is no reason why one cannot put it in two different not necessarily consistent ways. One of the ways in which I would put it is this, that it is a purported exercise of the power under section 417 and if the Court concluded that that was the case, then there would be no jurisdiction by reason of the combined effects of sections 485 and 475.

HER HONOUR: You are again talking about Ms McNaughton's decision.

MR GAME: Yes, your Honour, but the point is that the decision purports to be a valid disposal, if one can put it this way, of the power which reposes in section 467. Now, one might think that that is the very sort of decision which the legislature intended to exclude by the operation of section 475(2) because there will be no cases, according to the way in which these guidelines are established, where there is a section 417 decision made because they will either be referred to the Minister by his Department and he will make a favourable decision or he will never hear about them. So there will be no decisions which are not judicially reviewable, so that all cases will fall back on section 476. It may well be the case that when section 475(2) refers to a:

(e) a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section.....417 -

that must, in my submission, include a purported exercise thereof.

HER HONOUR: I do not follow that.

MR GAME: The jurisdictional exclusion under 475(2)(e) must relate to purported exercises of the power under section 417, and this is a purported exercise because the letter says that Ms McNaughton is responding on the Minister's behalf.

HER HONOUR: That is not a concession on your part, I take it.

MR GAME: No, your Honour, but the letter says, "I am responding on the Minister's behalf". That is to say, "Here is your 417 decision" in which case we go to the Federal Court and then they say - in fact there is an authority of the Federal Court which actually disposed of such an application in a case which is distinguishable in a way - it is called Ozmanian v Minister for Immigration - because the letter said "Senator Bolkus has asked me to reply on his behalf", whereas this letter just says that Ms McNaughton is replying on his behalf. They are nice points of distinction as to whether or not this would in fact be a decision under 475(2)(e) and therefore excluded. As I say, in Ozmanian it was so held to be. So that is the jurisdictional difficulty as we see it in relation to the institution of proceedings in the Federal Court, whether it be against the Minister or against Ms McNaughton.

It is our case that we do have a strongly arguable case, given the sequence of events which occurred in relation to the decision - - -

HER HONOUR: A strongly arguable case for what?

MR GAME: A strongly arguable case for the grant of writs of mandamus.

HER HONOUR: As requested by you.

MR GAME: Yes. Could I take you to the - - -

HER HONOUR: Could I tell you I think you have a problem in so far as the Minister is concerned, do you not, in that there seems to have been no decision by the Minister.

MR GAME: Your Honour, there may have been no decision but the characterisation of something as a decision or not a decision is not critical to the grant of mandamus because that - - -

HER HONOUR: It is in a sense. Yes, I understand what you say about mandamus. On your argument why do you not seek merely prohibition against the Minister directing him not to act on the decision of Ms McNaughton and mandamus to Ms McNaughton requiring her to refer - - -?

MR GAME: Yes, that would be - - -

HER HONOUR: But I do not understand why you do not do that and I do not understand why you do not see the decision in this case as a decision not to refer the matter to the Minister.

MR GAME: I do see it as that and I do put it as that and I put it as that in the written submissions.

HER HONOUR: I do not think your draft orders put it in that way.

MR GAME:

(i) directing the Second Respondent to bring to the attention of the First Respondent the Prosecutor's application -

Now, that is an order sought in respect of the second respondent and maybe there are defects in the drafting but that would be the effect of the granting of the order in respect of the second respondent.

HER HONOUR: Yes. Now, I can see no basis for your (ii) particularly because of the provisions of section 417.

MR GAME: Section 417 and section 475 contemplate both the making of a decision and the making of a decision whether or not to consider. In fact, that is precisely - the Minister has to decide whether or not he will consider an application. If you do not have that step in the process, then the Department can simply say, well, no applications will get to the Minister, and end of section.

But, your Honour, we would be content to have - and we would not seek to argue that we should have the second order in the event that a writ of prohibition went to the first respondent because that would have precisely the same effect as a writ of mandamus against the second respondent and a writ of prohibition against the first.

HER HONOUR: Do you claim that all the grounds, while we have got it open, there set out are grounds for the issue of mandamus or prohibition?

MR GAME: I think I would have to amend the grounds to add a ground that the second respondent was obliged to bring the application to the first respondent's notice and I would seek leave to do so to add that ground.

HER HONOUR: Are the other grounds prerogative relief grounds? (i) is usually seen as a prerogative relief ground.

MR GAME: Wednesbury unreasonableness is usually seen as being prerogative relief ground; "relative considerations" is an improper exercise of the power which is a prerogative relief ground; the obligation to consider the application personally, to either consider or to consider whether to consider is what is comprehended by (iv); and then I would seek to add (v) that the second respondent was obliged to bring the prosecutor's application to the attention of the first respondent. I would seek to make that amendment.

HER HONOUR: Yes; and you wish to amend (iv) as well.

MR GAME: Yes. "was obliged to consider or to consider whether to consider". Yes. I seek to make those two amendments, if your Honour pleases.

HER HONOUR: Yes.

MR GAME: Now, your Honour, with respect to the substance of the application two affidavits have been filed and I would seek to read both of those affidavits.

HER HONOUR: Yes. I think you can take them as read at this stage.

MR GAME: Has your Honour had an opportunity to read the decision of the Tribunal, the letter to the Minister and the application which have been made?

HER HONOUR: Yes.

MR GAME: If I could just take your Honour very briefly to the second-last page and the last page of the Tribunal's decision. On the second-last page, last paragraph:

may well have faced a real chance of persecution in Ethiopia at the time she arrived in Australia -

so, when she gets here in August 1990, "may well have faced a real chance of persecution". Next page: she did leave "Ethiopia for a Convention reason", so she was a refugee at the time of her departure, may well have been when she got here and:

has a subjective fear of returning.....and neither she nor her two daughters -

who are respectively aged 6 and 17 -

are entitled to grant of a protection visa.

Then one goes from there to the letter which refers attention to various matters including the Tribunal's decision. Unfortunately, on page 2 of the letter it refers to the final paragraph of the decision which is actually the penultimate paragraph which was not in fact the critical paragraph in the judgment. From there, one goes to the Minister's decision.

HER HONOUR: One goes to Ms McNaughton's decision.

MR GAME: Sorry, an unfortunate slip of the tongue: one goes to Ms McNaughton's decision. She says, in the first paragraph, "I am relying on his behalf". The final paragraph indicates that it has not been referred to the Minister. So it is clear that the Minister has not had notice of the application and that goes to the substance of our case. Her replying on his behalf, we would submit that it is a clear case of a non-delegable power under section 417, whether it be a decision to consider or a decision not to consider. She has indicated that she has not forwarded it to him because it is said that the case falls outside the scope of the guidelines. Then the guidelines - the critical guideline - - -

HER HONOUR: Guideline 5(i).

MR GAME: - - - which is guideline 5(i):

may have been a refugee at the time....due to fundamental changes -

well, the fundamental changes are referred to in the judgment. The Tigrayan Liberation Front succeeded in overcoming the government, as I understand the situation -

but due to fundamental changes in their country, is not now a refugee and it would be inhumane to return them to their own country because of their subjective fear.

And there was a finding that she had the subjective fear in the Tribunal's findings. One might be inclined to ask how could it possibly be, with the Tribunal's findings and that guideline, that any reasonable decision maker could come to such a conclusion and were it the case that that were purported, procedural fairness would require that the prosecutor have notice as to how it is said that although her application falls squarely within the guidelines as a matter of simple reading of both the Tribunal's decision and the guidelines, how it could be that Ms McNaughton has concluded that they do not.

Then paragraph 7 of the guidelines says:

When the Department receives the decision regarding a rejected case.....a Departmental officer may, in accordance with these guidelines, refer the case for the Minister's consideration under this public interest provision -

Now, in our submission, that is the fundamental flaw with this whole procedure. Really, what it does is it takes the personal power away from the Minister and the personal power is to be found in a number of aspects of the Act, puts it in the hands of the Department when the occasion for that exercise whether it be to consider or whether not to consider, vests in the Minister.

A decision of this kind which simply flies in the face of the guidelines points up very well, in our submission, the fundamental problem with the procedure followed in this case. It is as bad as the Department simply saying, "We're not sending your application to the Minister. We don't feel like it". The prosecutor in this case is left in a situation where she simply would not know why it was that her case or what she should do to persuade Ms McNaughton to bring the letter to the Minister's attention. The Minister might be moved by the prosecutor's case. He might be moved by the personal circumstances of her family - of her 17-year-old child and her 6-year-old child who know nothing of Ethiopia and will shortly be sent to live there for the first time in their lives.

Then paragraph 9 says:

The guidelines are not exhaustive of all the matters which may be taken into account.

Your Honour, I should have said, in response to something your Honour said very early, that procedural fairness has always been treated as going to jurisdiction so that there really would be no problem with our arguments in their substance if the matter stayed in this Court because, really, the substance of our arguments in relation to Ms McNaughton's decision either go to the invalid exercise of the power not to refer to the Minister or to questions of procedural fairness and either of those, in a fundamental way, go to jurisdiction whereas section 476 knocks us out if we do not succeed on the first fundamental basis. Our remedy in this Court is certainly substantially larger. In terms of the arguments we seek to put, there really would be no arguments that we could not put, in my submission, in the context of the way in which I am putting the case to your Honour.

HER HONOUR: Yes. Now, why do you oppose remitter?

MR GAME: Why did we oppose remitter?

HER HONOUR: Why do you?

MR GAME: We oppose remitter, your Honour, because if we get remitted then if the decision - sections 485, and 475 and 476 have to be read in conjunction with each other. We oppose remitter because section 485(3) says:

If a matter relating to a judicially-reviewable decision is remitted to the Federal Court.....the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.

So, as you can see, it is necessary for me to put some arguments in reverse terms but if it were concluded that the relevant decision was Ms McNaughton's decision, if it were concluded that that was a decision relating to a visa, then we would fall squarely under section 476 and we would be out of court unless we succeeded in relation to our fundamental point which was that she had no power to prevent the matter going to the Minister and we would lose all our procedural fairness points which, in our submission, do go to jurisdiction and this Court would have jurisdiction to determine them. So, that is where we would end up if we were remitted. We would lose the second and substantial leg of our case.

HER HONOUR: You would lose your procedure fairness ground.

MR GAME: Yes, and unreasonableness.

HER HONOUR: It may be a question whether that goes to prerogative relief anyway.

MR GAME: But, in any event, I think if it does not succeed on procedural fairness, it would be unlikely to succeed on the pure basis of Wednesbury unreasonableness.

In relation to the written submissions, I do not think there is any necessity to take your Honour through them step by step. I take it your Honour has had an opportunity to read them?

HER HONOUR: Yes.

MR GAME: Those, in summary, are the arguments that we would seek to put and the way in which we would put them, your Honour.

HER HONOUR: Yes. Thank you, Mr Game. Yes, Mr Tracey.

MR TRACEY: If your Honour pleases, may I start by quickly revisiting section 417. Your Honour, the power that is conferred on the Minister under section 417(1) is a power, if he thinks it is in the public interest to do so, to make a decision that would operate to the advantage of a person who has had a less favourable decision from the Refugee Review Tribunal. By subsection (3), it is that decision and that decision only that is required to be exercised by the Minister personally.

When one goes down to subsection (7) one finds that:

The Minister does not have a duty to -

even -

consider whether to exercise the power under subsection (1) -

and there is no equivalent requirement, even if he did chose to consider it, that he should do so personally.

HER HONOUR: It is clearly arguable though that the Minister does have to consider whether to consider to exercise the power.

MR TRACEY: We would submit not, your Honour. We would say 417(7) makes it clear that he does not. Your Honour, the next thing we would want to submit is that the guidelines have no bearing upon how the Minister goes about exercising his powers under 417.

HER HONOUR: Do you say he has exercised them?

MR TRACEY: No, he has not. On our principal submission, no, he has not. Your Honour, the guidelines are there to deal with a different matter altogether, as they say. The guidelines are there to deal with the procedure that is to be followed routinely within the Department upon the return to the Department of a decision by the Refugee Review Tribunal and what they say is directed towards what the officer of the Department, who gets that file back, is to do. That is clear in a number of places but it is particularly clear in the clause that our friend just read to you, clause 7:

When the Department receives the decision regarding a rejected case from the Tribunal under s166E(2) of the Act, a Departmental officer may, in accordance with these guidelines, refer the case for the Minister's consideration under this public interest provision although the Minister does not have a duty to consider whether to exercise his power.

Now, that is the guideline. It is designed to guide departmental officers. It is not in any sense a set of criteria which govern the exercise of the Minister's powers under section 417.

It is against that background that one then comes to the letter that is said to record the decision in this matter and it is our submission that Ms McNaughton has not made a decision at all, that all that she has done in that letter is record the history of the processing of this matter under the guidelines. "When documents in a decided review case are returned to the Department from the RRT the applicant's claims are examined against the Minister's guidelines for stay in Australia on humanitarian grounds. Ms Salew's case falls outside the scope of these guidelines and it has not been referred to the Minister." In other words - - -

HER HONOUR: What has happened then to the letter from Kessels & Associates?

MR TRACEY: Your Honour, it has not been referred to the Minister.

HER HONOUR: Is it going to be referred to the Minister?

MR TRACEY: No, your Honour.

HER HONOUR: That letter is meant to indicate that the Kessels' application will not be referred to the Minister.

MR TRACEY: That is the effect of it, your Honour, but because of the history. Your Honour will note that the letter constitutes a request that the Minister consider the exercise of his powers under 417 and he is not obliged to consider even whether to exercise those powers. So, it is perfectly within his right to say to his staff and to his Department, "I don't want to see such letters unless somebody in the Department, at the time that it has come back from the RRT, has formed the judgment that it may fall within the guidelines and, in that event, I may consider whether to exercise my powers under 417 but, even then, I'm not committing myself". That is the way the documents indicate the system works. It is against that background that one understands what Ms McNaughton is saying.

Now, it could have been spelt out in a somewhat more detailed fashion but, your Honour, she is not making a decision. She is - - -

HER HONOUR: She is making a decision, is he not, that the letter to the Minister will not, in fact, be given to him?

MR TRACEY: Yes, that is so. Your Honour, that is something that the Minister himself has contemplated in construing the guidelines.

HER HONOUR: Where does that appear?

MR TRACEY: Your Honour, it is a necessary inference from the fact that Ms McNaughton is his senior adviser and is replying on his behalf. Our alternative position is that she is the alter ego of the Minister. She is his senior adviser. She is a member of his staff. She is speaking for him. The best construction that can be put on it from that point of view by our friends is that she is saying, in substance, on the Minister's behalf, "I'm not going to look at it" and that is something that he would be perfectly entitled to do under 417(7) and, accordingly, she can too, acting as the Minister, not a delegate or somebody in the Department but as his alter ego. So that however it is analysed, it is our submission that there is no decision that might properly be made the subject of - - -

HER HONOUR: The Act does not say anything about the Minister's alter ego.

MR TRACEY: It does not need to, your Honour. The common law would recognise - - -

HER HONOUR: Do we all have an alter ego?

MR TRACEY: We do if we are ministers, your Honour, yes.

HER HONOUR: It is news to me.

MR TRACEY: Your Honour, may I refer your Honour to a decision of the present Chief Justice when he was President of the Administrative Appeals Tribunal in which he deals with these issues. It is a case that bears the title Re Reference under s 11 of Ombudsman Act 1976 (1979) 2 ALD 86. It has a longer title but I will pause there. His Honour reviews at great length the concept of ministers having alter egos of necessity. They just cannot be expected to do all the things that fall to their lot under statutory provision. I think perhaps the most convenient course, rather than reading long passages, is simply to provide your Honour with a copy of the decision. But it certainly supports the proposition for which we are now contending, that ministers - - -

HER HONOUR: In relation to statutory discretions?

MR TRACEY: Yes, your Honour, yes. Your Honour, we are saying, of course, that there is no statutory discretion that is imposed on the Minister here. We say that he is not obliged to even consider whether to exercise the power and that must carry with it the notion that he can say to those advising him and those on his personal staff, "I want to see certain letters of this kind. I don't want to see others" and in doing so he breaches no statutory duty and he is relieved of any obligation to even - - -

HER HONOUR: But the letter does not say that that is what he has done.

MR TRACEY: No. That goes back to our principal submission. The letter records history and says that under the guidelines the view was taken when it came back that it did not fall within the guidelines and for that reason it was not referred. So, it just records the history of the matter and it does not involve a decision by Ms McNaughton at all.

Your Honour, we submit that there is no duty, no relevant duty that our friends have been able to identify which would require Ms McNaughton to put the Kessels' letter in front of the Minister. Your Honour, if that is right then the Minister would be looking at thousands of these letters every year, and it is just not feasible for a Minister to do that and that is why 417(7) is in the terms that it is, so that he does not have to.

Your Honour, we submit that there is no relevant decision, certainly not by the Minister and, we would submit further, not by Ms McNaughton, and that mandamus is not available against either of them because there is no statutory duty that has been identified or breached and that there is no possible basis for the issuing of prohibition because the only way it seems to have been put is that the Minister would be prohibited from acting on Ms McNaughton's decision, and we have submitted she has not made one.

HER HONOUR: She certainly decided not to refer the application to him.

MR TRACEY: Yes, she certainly did that but we would submit that that is something that she is not under a duty to do and, hence, there is no breach of any duty in not doing it. Of course, we make that submission on the basis that it is plain, firstly, from the guidelines in so far as they are relevant but, in particular, in the statute, that there is no requirement that all these letters do go to the Minister personally. So that if that be right then there can be no duty that fell upon Ms McNaughton to give it to him and, therefore, no basis for - - -

HER HONOUR: There would certainly be no duty if you could point to a decision that letters, for example, from applicants from Ethiopia will not be considered.

MR TRACEY: Your Honour, there is certainly no evidence of anything like that. The closest one gets to it is the guidelines which are designed to tell officers of the Department the sorts of matters the Minister might be interested in looking at and they are not confined to Ethiopians, they are applicable whenever there is an adverse decision that comes back from the RRT.

The view was taken in the Department that this particular lady's case did not fall within those guidelines and, accordingly, the matter was not referred to the Minister. Subsequently, a letter comes in asking or applying to the Minister to exercise his powers under 417. Ms McNaughton simply writes back and says, "It's already been put through the process that the Minister has set up when he established the guidelines and it has not been referred. Inferentially, I'm not going to take the matter any further by putting your letter in front of the Minister." But, as we have submitted, your Honour, she was never under a duty to do that. Therefore, there is nothing that is enforceable by mandamus and there is nothing to prohibit.

Your Honour, we have reduced our submissions to written form. We did not presume to submit them in advance but if it would assist I can hand them to your Honour.

HER HONOUR: Yes, I would be grateful.

MR TRACEY: Your Honour, the only other thing that I should perhaps submit in the alternative - our principal submission being that there is nothing to remit because even if remittal was not in question, we would submit your Honour would not make an order nisi. But if your Honour takes a different view about that, our submission in relation to the efficacy of remittal is this, that it is our submission that this matter does not fall within 475(1)(c) because there has been no decision. We say that it does not fall within 475(2)(e) because the Minister has not made a decision. At best, anything Ms McNaughton has done by deciding not to refer the letter is anterior to the decision contemplated by 475(2)(e). But we concede that if we are wrong about that and a Federal Court judge, on remittal, took the view that this matter did fall within 475(1)(c), then our friends would be confronted with the difficulty that they have identified to your Honour in that they would be deprived of their natural justice arguments.

The complication that we have to draw to your Honour's attention is that enough has probably been said this morning to make it plain that if this matter goes forward, we would want to go on affidavit about a number of these matters and there may well be disputed questions of fact. Now, how one crafts an order that would protect our friend's position but avoids the problem of this Court having to resolve disputed questions of fact is something that we have given consideration to and the only way that we can see around it would be that the matter would be remitted in part to the Federal Court for fact finding and then come back to this Court for the resolution of the legal issues. We have not been able to devise any other means whereby that problem could be resolved.

HER HONOUR: If it were to come to that, you could apply by a directions summons or something of that nature.

MR TRACEY: It really would not be our problem, your Honour. I mean, our friends would need to consider their position about it but we did think it appropriate to raise it because it is the case that we would want to put on affidavit material directed towards the sorts of matters that we say apparently emerge on the documents but would want to verify by affidavit. Your Honour, that may go, for example, to an explanation of why it was that the original departmental officer took the view that he or she did in relation to the guidelines because we would certainly submit that it is not self-evident that guideline 5(i) applied in this case, that there was any inhumanity involved and things of that kind. So that there are those sorts of issues lurking in the background and we thought we should alert the Court to them. Unless there is anything else, your Honour, that is all we wish to say.

HER HONOUR: Thank you, Mr Tracey.

MR GAME: Your Honour, I am afraid I have really just turned over the pages of my friend's submissions but just a couple of points in reply to his oral submissions. The very proposition which my friend puts that it is within the right of the Minister to say, "I don't want to see these applications" points up the very unsatisfactory nature of a personal power reposing in the Minister being determined by other people who never bring to his attention applications which may be worthy, and the Act contemplates the Minister both making decisions to consider and decisions whether or not to consider as appears in section 475.

With respect to delegation, this is clearly not a case of delegation in the Carltona sense, and I have referred at the top of page 3 of the submissions of the former Chief Justice in Minister for Aboriginal Affairs v Peko-Wallsend. There are some legislative powers which must be exercised personally and this is one, however it be construed, in my submission. If the guidelines that the Department have created have created unworkable problems for them, well that is really their problem. The question is not to be determined by reference ultimately to what appears in departmental guidelines but to what the section requires of the Minister.

In response to another point that my friend made, the suggestion that the guidelines were anything but a guide to the section 417 discretion, in my submission, must be unfounded. With respect to delegation, I should just draw your Honour's attention to section 496 which does contain the statutory power of delegation which clearly, in our submission, has not sought to be invoked in this case. This is, in our submission, clearly not a delegation case.

The whole notion that the public interest is determined by departmental officers when section 417 says "in the public interest" the Minister determines when that is a ministerial matter, in our submission, is also unfounded. Those are my submissions in reply, if your Honour pleases.

HER HONOUR: Yes. Without going into any detail, I should indicate I would be prepared to grant an order nisi along much the same terms as in your document. The writ of mandamus to the first respondent can only go, however, to consider whether or not to consider the respondent's application and on terms that the grounds are amended as indicated in the course of your argument so that there is a ground that the second respondent has no power to determine the application and by the alteration of (iv) and the addition of (v) to which you referred in the course of argument.

I take it from what Mr Tracey has said that there will be affidavits filed on behalf of the respondents in due course. If difficulties emerge in relation to that, I suggest that the prosecutor take out a summons for directions where those matters can be dealt with.

MR GAME: If your Honour pleases.

AT 10.35 AM THE MATTER WAS CONCLUDED