Qureshi, Ex parte; Re Minister for Immigration & Anor M65/1996 [1996] HCATrans 414 (15 October 1996)

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

Victoria

Level 7

451 Little Bourke St

Melbourne VIC 3000

GPO Box 1114J

Melbourne VIC 3001

Phone [phone]

Fax [phone]

O/N 4643

A 18.10.96

A 21.10.96

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M65 of 1996

RE: THE MINISTER FOR IMMIGRATION and ANOTHER

Ex parte: QURESHI

DAWSON J

AT MELBOURNE, TUESDAY THE 15TH DAY OF OCTOBER 1996

AT 10.05 AM

MR T.V. HURLEY: Your Honour, I appear on behalf of behalf of the applicant and prosecutor in this matter (instructed by Barlow & Co). I have prepared, your Honour, some written submissions.

HIS HONOUR: Perhaps we will just take Mr Tracey's appearance.

MR R.R.S. TRACEY QC: If the Court pleases, I appear with my learned friend, MR S.G.E. McLEISH for the two proposed respondents (instructed by the Australian Government Solicitor).

HIS HONOUR: Yes, Mr Tracey. Yes, Mr Hurley.

MR HURLEY: Your Honour, if I may - I have given a copy of these submissions to my learned friends, your Honour. Your Honour, the applicant seeks that your Honour grant an order nisi, essentially in the form which is exhibit SQ12 to the affidavit of the applicant filed in these proceedings on two grounds, your Honour. Firstly, in respect of mandamus, which is addressed on page 2 at paragraph 3 of our outline.

HIS HONOUR: Yes.

MR HURLEY: Does your Honour wish me to read the affidavit?

HIS HONOUR: When you say the grounds, where do the grounds appear? They are not in the submissions there. What I am looking for is a draft order.

MR HURLEY: Your Honour, if I can submit to your Honour and my learned friends an order that overtakes the exhibit and refers to your Honour.

HIS HONOUR: Yes.

MR HURLEY: The bottom of page 2, your Honour:

Upon the grounds that a decision of the first-named respondent ...(reads)... 1994 regulations re 23.1.

Well, that is probably the ground, your Honour. The balance of the sentence is perhaps particularisation of the ground because:

The first-named respondent who is delegate to the second-respondent accepted ...(reads)... merits given to the applicant.

The second - - -

HIS HONOUR: The second ground really is a general ground which embraces the first, is it?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Well, the substance of the matter is in the first ground.

MR HURLEY: Yes, your Honour. The substance of the matter is - - -

HIS HONOUR: Well, now, I have read the papers to the extent that I know that the applicant was in receipt of a scholarship of some $600 or $650 a month - - -

MR HURLEY: Yes, your Honour.

HIS HONOUR: - - - awarded by his government.

MR HURLEY: That is right.

HIS HONOUR: In Pakistan, is it?

MR HURLEY: Yes, your Honour.

HIS HONOUR: And it was because of that that the view was taken that he was financially assisted by the government in another country.

MR HURLEY: Yes, your Honour, that was the view that was - - -

HIS HONOUR: Well, why is that a wrong view?

MR HURLEY: Your Honour, we contend that the phrase "financial assistance" where it appears in the regulations, is directed to assistance to alleviate necessitous circumstances. It is not assistance which is not directed to that end. So the receipt by my client of a scholarship or a prize, we submit, is not financial assistance within the proper construction of the relevant clause of the regulations.

HIS HONOUR: Well, it is finance and it assists, I suppose.

MR HURLEY: Well, any finance assists, but whether it is financial assistance - it is a phrase that appears, your Honour - if we go to the submissions at page 8 - it is a phrase that appears not only in the Constitution in section 96 "financial assistance to the States" which your Honour is aware of in another context and also in the corporations law and in the former companies legislation, financial assistance to purchase shares, but it is not a - we submit, the construction given to the phrase in other statutory circumstances does not govern its construction in this particular clause of the regulations and we submit that on the proper construction the regulations - that clause of the regulation would not be intended to exclude persons who have received a scholarship with a prize and that in the - - -

HIS HONOUR: But is not the scholarship - I see that you say that the purpose of this particular provision is to ensure that people who are beholden to their country of origin do not stay in Australia and thereby not perform their duty to that country?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Well, now, why is this situation any different? Here you have an applicant who has been given a scholarship to enable him to undertake training in another country in the expectation perhaps that he should return and that the country which provided the scholarship should have the benefit of his education here.

MR HURLEY: In the expectation, your Honour, not under the obligation, and we submit that the scholarship material - the financial assistance that my client receives is that given as a result of an examination and interview and based on merit, so it is a reward for academic achievement and we contend that that financial assistance is excluded from the proper construction of the regulation which is limited to persons who receive financial assistance based on need and/or with the obligation of returning to their home country. So the regulation does not deprive those countries of persons who have been sent to Australia to study and given financial assistance to remove their necessitous circumstances.

We submit that my client stands apart from that. He won a scholarship on his merit, on his academic merit, and that that reward for academic achievement is not financial assistance that is caught by the relevant clause of the regulations and that the - - -

HIS HONOUR: The finance which is provided is by way of a monthly sum during what period?

MR HURLEY: It is a monthly sum, your Honour.

HIS HONOUR: During the completion of a particular course or for a particular period? Well, do not worry. You can have that looked up while you are talking.

MR HURLEY: One year - I gather, your Honour, the award was initial valid for a period of one year and its extension is "subject to your satisfactory academic performance". So that is the - - -

HIS HONOUR: Yes. It is just that I can understand the difference between what you describe as a prize in the form of some books or a lump sum, but a periodic sum paid while someone is undertaking course looks somewhat like financial assistance, does not it?

MR HURLEY: Well, your Honour, we submit its character is determined by the basis on which it is allocated and this financial assistance is allocated to my client on the basis of his merit rather than on his need and therefore because of the basis on which it is allocated it, for that reason, falls outside the proper construction of financial assistance in the relevant regulation, that it would be - - -

HIS HONOUR: You say that the phrase "financial assistance" has a specific purpose, which is to prevent people who study in Australia and who are beholden to their country of origin, from remaining in Australia. Where do you get that from? Is it from - - -

MR HURLEY: It is our contention that that is the construction of the regulation, your Honour.

HIS HONOUR: The regulations do not have a Second Reading Speech or anything to give you any information about them.

MR HURLEY: Your Honour, not for this clause or these regulations.

HIS HONOUR: No.

MR HURLEY: They are not subject to that enlightenment, your Honour.

HIS HONOUR: There has been no decision that that is it purpose, so far as you know?

MR HURLEY: No, your Honour. There is no decision on the regulation of the phrase by a court or by a tribunal that we are aware of that would enlighten the meaning and my client's circumstances are the first time we understand that it has arisen and to the extent that that is a relevant factor in granting the order nisi, we would submit that it is a matter that goes towards granting the order nisi so that the true construction of the regulation may be elucidated.

HIS HONOUR: If there were an arguable case that the particular regulation does not apply on the basis which you advance, what would you say to the matter being remitted to the Federal Court for determination.

MR HURLEY: That is what we ask for, your Honour.

HIS HONOUR: Yes.

MR HURLEY: We ask that it be remitted. There is a matter pending in the Federal Court where my client has attempted to rely on section 39B of the Judiciary Act in the Federal Court.

HIS HONOUR: There are difficulties about that.

MR HURLEY: There are difficulties about that, your honour.

HIS HONOUR: But you say there is jurisdiction in the Federal Court if it is remitted, do you?

MR HURLEY: To entertain this matter, your Honour?

HIS HONOUR: Yes.

MR HURLEY: Yes, your Honour.

HIS HONOUR: How do you say that?

MR HURLEY: Your Honour, by section 400 - does your Honour have the current reprint of the Migration Act reprinted on the 6th

HIS HONOUR: Yes, I do.

MR HURLEY: Your Honour, section 485, subsection (1) of the current Migration Act places limits on the jurisdiction of the Federal Court wherein it provides:

In spite of any other law, including 39 of the Judiciary Act, the Federal Court does not have any ...(reads)... reviewable decisions.

I interpolate by taking your Honour, if I can, back to section 475, subsection 2B:

All decisions covered by subsection 475(2) -

which is where it came from -

other than to ...(reads)... section 44 of the Judiciary Act.

HIS HONOUR: So, really, what that section seeks to do is to restrict the Federal Court to appeals under the Administrative Appeals Tribunal Act, save for section 44 remitter cases.

MR HURLEY: Yes, your Honour.

HIS HONOUR: Yes. All right.

MR HURLEY: So we submit that Parliament there has clearly contemplated that this Court will remit matters to the Federal Court.

[10.18am]

HIS HONOUR: Well, the Federal Court does not have jurisdiction other than by reason by remittal under section 44. Does section 44, when a remit occurs, confer jurisdiction, or does the Court have to otherwise have the jurisdiction?

MR HURLEY: We would submit that it would - that the Judiciary Act and it would confer jurisdiction, your Honour, but - by sub-section 3, your Honour, also is relevant in construing the jurisdiction of the Court. If a matter related to judiciary related or a judiciary reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act - - -

HIS HONOUR: This is section?

MR HURLEY: 485.

HIS HONOUR: Yes.

MR HURLEY: Sub-section 3. If a matter related to a judiciary or reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act, 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. If your Honour goes to section 481, that gives the powers of the Federal Court. We submit that - and there are a list of powers which are similar to those found under the AD(JR) Act, the Administrative Decisions (Judicial Review) Act. Your Honours, the Federal Court may make orders affirming, quashing or setting aside the decision.

HIS HONOUR: Well, 481(1)(d) would seem to cover anything anyone would want, would it not?

MR HURLEY: Yes, your Honour, or one - yes, your Honour.

HIS HONOUR: What about the grounds; is the Federal Court restricted to the grounds of the Migration Act for an appeal?

MR HURLEY: Well - - -

HIS HONOUR: Or is it the grounds at large under section 485 and section 44 of the Judiciary Act?

MR HURLEY: We would submit that the grounds would be at large, but it does not matter in relation to this question because what we have - the essence of the - - -

HIS HONOUR: It is just an error of law - - -

MR HURLEY: Yes, your Honour, which is section 476(1)(e) which is a ground under part 8.

HIS HONOUR: Yes.

MR HURLEY: So, your Honour, we submit that there would be jurisdiction under the - the Federal Court does have jurisdiction under the Migration Act to consider the grounds - to make orders in respect of a matter remitted under section 44 of the Judiciary Act which is what - which is the relief we seek, your Honour, in the order that I believe I have handed up. We seek - on page 3, your Honour, we seek an extension of time to bring these proceedings because the application was filed some time after the decision that is sought to be reviewed. And the reason for that is explained, your Honour, in - - -

HIS HONOUR: But where does the limitation of time apply? Or where do you find it?

MR HURLEY: The High Court rules, your Honour, in - - -

HIS HONOUR: I see, yes.

MR HURLEY: In seeking this interlocutory relief, it is provided that - there are 60 day time limits I believe, your Honour, under High Court rules, order 55 rule 17, and order 55, rule 30. Rule 17 relates to mandamus and rule 30 I believe relates to certiorari. And your Honour has power under High Court rules order 60, rule 6 to extend time under the rules.

HIS HONOUR: Why has there been delay in this case?

MR HURLEY: Your Honour, that is referred to in the matters alleged in the Federal Court proceedings. Your Honour has exhibit SQ8 - - -

HIS HONOUR: Yes.

MR HURLEY: This is the statement of claim that is filed in the Federal Court in support of the application made under section 39(b), your Honour, and on page 2 it lists a chronology. It alleges a chronology, your Honour. I do not know that the defence has been filed for this in the Federal Court due to the concern as to whether it is another proceeding in the Federal Court. But your Honour will see in paragraph 4 that the decision that we seek to challenge, which was made on 18 January 1995, was received by the solicitors for the applicant. There then follows a Freedom of Information request - on 25 January in paragraph 5 the solicitor for the applicant filed an application to the internal review office.

That was then, according to these pleadings, it is alleged was mislaid. When it was discovered, in paragraph 13 the solicitors for the applicant were advised that it had been discovered that no application fee had been submitted with it, and there was a communication with a secretary and that communication was not passed on within the office for the solicitors for the applicant. The solicitors for the applicant then promptly applied to the Federal Court and commenced the proceedings that are pending in the Federal Court which have led to the filing of a notice of objection to competency - - -

HIS HONOUR: Perhaps I will ask Mr Tracey. Apart from the merits of the matter, do you take any point as to the application being out of time, Mr Tracey?

MR TRACEY: No, your Honour.

HIS HONOUR: No. Very well, you need not pursue that.

MR HURLEY: Your Honour, the essence of our submissions is contained in - - -

HIS HONOUR: Well, it is a short point, is not it? You cannot - - -

MR HURLEY: It is a very short point, your Honour; it is a very short point what is - - -

HIS HONOUR: Yes.

MR HURLEY: What does the term financial assistance in that regulation mean? Does it mean a scholarship or does it mean a means tested form of assistance? And we contend at the top of page 6 that that - what we contend is a misconstruction of the regulations and error of law, that means that - it has the effect that the duty of the respondents to assess the application has not been discharged which enables mandamus to issue. And there are - authorities are there referred to at the top of page 6.

And alternatively, your Honour, we contend that the decision involves an error of law in the face of the record, and we would take the Court to exhibit SQ3 which is described as the decision record which has the construction of the regulation on it. And we contend, alternatively, that that is an error of law within the recent decisions of this Court and that an order nisi should - does lie on the question of the construction of that phrase in the regulation.

HIS HONOUR: Yes.

MR HURLEY: Unless I can be of further assistance, your Honour.

HIS HONOUR: Thank you, Mr Hurley. Mr Tracey.

MR TRACEY: Your Honour, it may assist for two reasons that will become apparent for your Honour to understand why this matter is here rather than somewhere else. Your Honour, an application was made for the visa in question by our learned friend's client and that application was rejected by a delegate of the Minister who is the first respondent. There was a right to have that decision internally reviewed within the department upon application being made within 28 days and the appropriate fee being paid. The application was made, the fee was not paid and still has not. If it had been, there would have been an internal review.

If the internal review had been unsatisfactory to the applicant, then there would have been a right of appeal to the - I beg your pardon, the Immigration Review Tribunal. And there would then have been a right under part 8 of the Migration Act for any adverse decision to be reviewed by the Federal Court on a point of law. And in that way the Federal Court would have become seized of jurisdiction. Because those steps were not - - -

HIS HONOUR: What section of the Migration Act is it that gives the Federal Court that jurisdiction?

MR TRACEY: Your Honour, it may assist if I hand it up. We have prepared a short document indicating what those avenues are and giving the relevant statutory references to the - - - - - -

HIS HONOUR: Thank you. That would be on appeal from - under the Administrative Appeals Act.

MR TRACEY: No, it would have got to the Federal Court, your Honour, as a judicially reviewable decision under part 8 because if it had gone through the normal stream, there would have been a decision of the Immigration Review Tribunal which your Honour will see in section 475(1)(a) judicially reviewable decision.

HIS HONOUR: Yes.

MR TRACEY: And then your Honour will see in 486 the Federal Court is given jurisdiction in respect to such decisions.

HIS HONOUR: Yes.

MR TRACEY: Now, your Honour, the point of taking your Honour briefly through those matters is this: firstly and obviously, to explain why this matter is here rather than somewhere else. But also, your Honour, to raise a question as to whether, indeed, there would be jurisdiction in the Federal Court if this matter were remitted by your Honour. Your Honour will note that the Federal Court's jurisdiction under 486 does not apply to a matter such as this, and your Honour will note that under section 44 of the Judiciary Act the Commonwealth has to be a party to proposed litigation before there is a conferring of jurisdiction on the Federal Court by the Judiciary Act so that when the matter goes back - - -

HIS HONOUR: That is 39(b), you mean.

MR TRACEY: No, your Honour. What I have in mind is a remittal under 44. Your Honour will see that in subsection 2(a) then there can be a remittal, and then under 3 - - -

HIS HONOUR: Just a second. Under 2(a) - - -

MR TRACEY: Well, perhaps your Honour ought to go to 2 first. Your Honour will see in 2 where a matter referred to in 38(a), (b), (c) or (d) as at any time pending, and this is not such a matter. Then 2(a) where the Commonwealth is a party - - -

HIS HONOUR: Yes.

MR TRACEY: And then 3 says that where the matter that is pending in the High Court is a matter that falls within 2 or 2(a) then jurisdiction is conferred on the Court to which the remittal - - -

HIS HONOUR: Takes place.

MR TRACEY: Indeed. Now, that is not this matter so the Federal Court does not get jurisdiction in that way.

[10.31am]

HIS HONOUR: Not this matter because?

MR TRACEY: Your Honour, because it does not fall under 2A.

HIS HONOUR: 2A.

HIS HONOUR: Why is not this a matter in which the Commonwealth is not being sued? Do you say it is prerogative relief?

MR TRACEY: No.

HIS HONOUR: That is the point.

MR TRACEY: Well, your Honour, 2A requires the Commonwealth to be a party as we read it, your Honour. I must say that this is not a submission that has been the subject of very detailed preparation because it had not occurred to us until your Honour raised the matter in argument, but we felt it appropriate to draw it to the Court's attention as a potential problem, but, your Honour, we would submit that the Commonwealth would have to be a party before 2A would apply, and it is not.

HIS HONOUR: Yes, but even if it is not a party then the remitter would be under subsection 1.

MR TRACEY: Well, your Honour, subsection 1 rather assumes that the Federal Court is seized of jurisdiction in respect of the subject matter and the parties independently.

HIS HONOUR: It does, but the jurisdiction may come via Section 44, may it not?

MR TRACEY: Well, your Honour, it is a nice point. We would have thought that what 44 - - -

HIS HONOUR: I thought that is what Johnson v The Commonwealth decided, that Section 44 can confer jurisdiction itself. I mean the assumption is that the Court has jurisdiction and that is the reason why a remitter is possible, but here the remitter is made possible expressly by Section 485, is it, of the Migration Act?

MR TRACEY: Well, your Honour, 485 does not in terms confer jurisdiction.

HIS HONOUR: Now, but it allows jurisdiction to be conferred.

MR TRACEY: Yes, if 44 confers the jurisdiction that is right, your Honour, and then it turns on 44 - - -

HIS HONOUR: And why should not Section 44 confer jurisdiction?

MR TRACEY: Well, your Honour, we would draw attention no more than to what has already been said, namely, that 2 and 2A do not apply so it has to be 1.

HIS HONOUR: Yes.

MR TRACEY: And the only question in relation to 1 has to be whether or not it assumes the existence of jurisdiction in the Court to which the remitter is directed in respect of the subject matter and the parties already - - -

HIS HONOUR: You see, the jurisdiction is the jurisdiction of the High Court that is remitted in effect.

MR TRACEY: Yes, and it is then exercised by that other Court as if it was the High Court exercising it.

HIS HONOUR: Yes. And one of the pre-conditions normally is that the Court have jurisdiction in its own right.

MR TRACEY: Yes.

HIS HONOUR: But that is not a pre-condition when one looks at Section 485 because it preserves it without that pre-condition.

MR TRACEY: Yes. With respect your Honour is perfectly correct. If 44(1) confers the jurisdiction then there is no problem and we merely raised it because there did seem to be some doubt in your Honour's mind about it and we thought we should say something about it, but, your Honour, the history of the matter shows that this matter would have fallen within the Federal Court's jurisdiction if the normal course had been followed and then there would not, of course, have been any difficulty and no doubt this Court would not have been troubled.

Your Honour, our submission is that this case really has no legal merit. We submit that what was provided to the applicant by his Government was purely and simply financial assistance to pursue his studies and that financial assistance included a maintenance allowance as it was described that was paid annually in the Australian equivalent of United States dollars, and that that supported him while he pursued his studies at the Royal Melbourne Institute of Technology. The scheme provided that he was to go back to Pakistan having qualified and teach for 5 years and if he did not then he was liable to repay the moneys.

Now, your Honour, that in our respectful submission does not sound like a mere recognition of academic excellence for which our friends would contend. If it was that then no doubt as Nobel Laureates are about to do there would have been a nice lump sum cheque recognising his academic achievement and he would have been left free to do with it as he wished, but that is not this scheme, this scheme is quite clear and it is a scheme whereby the Pakistan Government sends selected graduates overseas to obtain training and requires them to come back, and if they do not come back and assist in the development of scholarship in Pakistan then they are bound to make repayment of the moneys that have been advanced to them to support their studies.

Therefore in our submission it is simply not an arguable point to say that when the regulations speak of the provision of financial assistance it does not cover what occurred here and, indeed, this seems to have been recognised, your Honour, by the applicant himself because when he applied to the Australian Government for the visa that got him here originally he said that he was receiving financial assistance from his home Government. So that even he did not seem to be in any particular doubt about it.

Your Honour, our next submission is that even if there is an arguable case it is an arguable case about the construction of a regulation and it is not a matter that goes to jurisdiction, and therefore is not one that would properly attract the writ of mandamus, and that for the same reason an injunction is not available, and on the assumption that certiorari is available - - -

HIS HONOUR: Well now, how do you put that?

MR TRACEY: I am sorry, your Honour

HIS HONOUR: The construction of the a regulation cannot found an application for prerogative relief?

MR TRACEY: No, I do not put it that high, your Honour. If the misconstruction leads to a mistake about the limits of the jurisdiction or something of that kind then, yes, it does, but, your Honour, this is not that sort of case, it is in our submission an exercise of jurisdiction plainly vested in the Minister's Delegate, and if she has erred it is not an error that affects the exercise of that jurisdiction, rather, she has simply misunderstood the statutory provision.

Now, your Honour, that is a distinction that this Court has drawn for many years and in particular it goes back to Bott's case which has been restated on a number of occasions since, and in that regard a distinction is drawn with certiorari because that sort of error may well attract certiorari if it is disclosed on the record, but it will not be the kind of error that will support the grant of a writ of mandamus. As to injunctions, your Honour, we will simply say that our researches have not discovered any case in which injunctions of a mandatory character have been used in circumstances where mandamus would otherwise be available, and if different grounds would justify the granting of an injunction even though mandamus was not available, then mandamus would be an entirely irrelevant remedy.

So that the two remedies that are identified that are to be found in Section 75(5) of the Constitution are not available in the present circumstances. Certiorari, if it is available, is in aid only of those remedies and in our submission if they are not available nor is certiorari, but we would make the further submission that the error, if there be one here contrary to our submission, is not an error that appears on the record.

Your Honour will recall the recent decision of the Court in Craig's case where the Court reaffirmed the narrow construction to be placed on that term "the record", and it certainly does not extent to the reasons for decision. It goes no further than the formal record of the decision, in this case a letter that went to the applicant that told him that his application was unsuccessful, and then there were reasons provided in a separate document that went with that letter and it was in those reasons that the Delegate expressed the view that the applicant was ineligible for the visa because of the receipt of financial assistance, and it is obviously implicit in that that the Delegate took the view that the money paid on a monthly basis constituted financial assistance within the meaning of the regulation; but, your Honour, that is not the record, so that even if certiorari was in some way independently available it would not assist the applicant in a case such as this.

Your Honour, it is for those reasons that we would submit that it would be futile even if everything else jurisdictionally was in the applicant's favour for this matter to be remitted because it would be doomed to failure below and we would ask your Honour to apply the same approach that your Honour would apply in determining whether to make an order nisi returnable before the High Court, and if your Honour was of the view that that was inappropriate, as we submit your Honour would be, then it is our submission that your Honour would make an order nisi and remit it to the Federal Court only to have it founder on the rocks that have just been referred to.

HIS HONOUR: Yes.

MR TRACEY: If your Honour please.

HIS HONOUR: Mr Hurley.

[10.45am]

MR HURLEY: Your Honour, it is our contention that relief in the nature of mandamus would be appropriate and could be granted in this application. If I can take your Honour to page 4 of our outline there is there set out, your Honour, the current Section 65 of the Migration Act which your Honour will have - in Section 65 of Migration Act. The task, your Honour, for the delegate and the Minister is set out at section 65(1):

After considering a valid application for a visa the Minister (a) is satisfied that -

in subparagraph 2:

the other criteria for it prescribed by this Act or the regulations have been satisfied -

and there are other paragraphs that are not relevant -

is to grant the visa.

Your Honour, my client's circumstances are such that his application was made under the former regime that existed before 1 September 1994 but the effect of transitional provisions which are set out at the bottom of page 4 and the top of page 5 of our submissions is that the criterion - if your Honour has our submission at page 5, it sets out the migration reform transitional provisions regulation 23 sub-regulations 1, 2 and 3, but sub-regulation 3 relevantly provides:

An application that under sub-regulation 2 is to be taken to be an application for a transitional visa is to be decided according to the criteria that applied to the entry permit for which the application is made.

Which brings in the relevant clause, your Honour, that is the subject of the dispute between us as to what is the phrase "financial assistance". That regulation still operates to determine my client's - - -

HIS HONOUR: Well there is no contest that - - -

MR HURLEY: No.

HIS HONOUR: What we are concerned with is whether there was financial assistance within the meaning of the clause 818.722. Yes.

MR HURLEY: The contention we make, your Honour, is that the decision that is being made under section 65(1) is a one that imposes a duty to perform a public right to consider whether in section 65(1)(a)(ii) the other criteria for it prescribed by this Act of the regulations have been satisfied. And this Court recently observed in the decision of the Minister for Immigration v Wu earlier this year in relation to refugee status, your Honour, about satisfaction being - the question as to whether the Minister was satisfied that a person had refugee status.

The Court, Brennan, Toohey and Gummow JJ, referred to authority Sir Owen Dixon's comment in Avon Downs and approved his comment where he said in relation to the phrase "satisfaction". Sir Owen Dixon observed:

His decision, it is true, is not inexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law. If he takes extraneous reason into consideration or excludes from consideration some factor which should affect his determination on any of these grounds, his conclusion is liable to review.

We contend, your Honour, that there is a duty that has not been discharged in relation to the decision under section 65(1)(a)(ii), that the delegate has addressed the wrong question by accepting that the erroneous construction of the phrase "financial assistance" that I have been agitating before. Your Honour, we contend that it is arguable that the construction we propound that excludes academic based financial assistance is excluded from the regulation and therefore my client would, if that construction succeeds, be otherwise entitled to the grant of the entry permit.

Well, it would remove that barrier. I do not believe there are any others, your Honour, but it would remove that barrier which at present stops him. So we contend, your Honour, that mandamus is a remedy that is available to the applicant. In relation to certiorari, your Honour, the authorities reveal that the reasons for decision can be adopted by reference and that is also a point that is made in Craig v South Australia and the Public Service Board of New South Wales v Osmond, that reasons can be adopted by reference.

We submit that the reasons that were submitted to my client represent the decision, that being exhibit SQ3 which is described as the decision record and that it is amenable to certiorari if it reveals a misconstruction of the flaws in the relevant regulations. We submit, your Honour, that the construction which we propound is one that is open. It is not foreclosed by any authority and it is one that involves consideration of the broad scope and purpose of the regulations. It is not doomed, as has been submitted on behalf of the respondent. It is an open question and one that we submit can found an order nisi which should be admitted to the Federal Court. I believe, your Honour, those are the - unless I can be of further assistance, those the submissions on behalf of the applicant prosecutor.

HIS HONOUR: Thank you. In this matter the applicant seeks orders nisi for prerogative relief to enable him to contest a decision that a scholarship in the form of a monthly payment of $650 granted to him by the government of his country of origin, namely Pakistan, during his period of study in Australia to acquire certain qualifications, is not financial assistance within the meaning of the Migration 1993 Regulations Schedule 2 clause 818.722. That provision requires that the applicant be not financially assisted by either the Commonwealth or the government of another country to undertake study leading to qualifications which include those which are sought in this country by the applicant.

After full argument I have reached a clear conclusion that it is not arguable that the applicant was not financially assisted by the government of Pakistan within the meaning of the relevant clause. I would reject the contention made by the applicant that the scholarship of which he is in receipt can be distinguished from financial assistance because it is awarded upon merit and not upon a basis of need. I do not regard that as a valid distinction. Accordingly, in my view, there is no basis upon which the applicant is able to maintain that there is any error of law or at all events the error of law on which his application depends and I should refuse the orders nisi for prerogative relief. I do so.

Is there anything else, gentlemen?

MR HURLEY: No, your Honour.

AT 10.53 AM THE MATTER WAS ADJOURNED

INDEFINITELY