Appellant M70 of 2006 v MIAC & Anor [2009] HCATrans 123 (1 June 2009)

Last Updated: 2 June 2009

[2009] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S120 of 2009

B e t w e e n -

APPELLANT M70 OF 2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MR SEAN LEYDEN

Second Respondent

Application for an order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 1 JUNE 2009, AT 4.32 PM

Copyright in the High Court of Australia

MR S.E.J. PRINCE: May the Court please, your Honour, I appear for the plaintiff. (instructed by the plaintiff)

MR Z. CHAMI: Your Honour, I appear for the Minister. (instructed by Clayton Utz)

HER HONOUR: Yes, Mr Prince.

MR PRINCE: Thank you, your Honour. This is a matter which has been brought on very quickly and we are grateful to the Court for making itself available at such short notice. There is an application which has been filed this afternoon for an order to show cause. Can I tell your Honour what the pith of the issue is.

HER HONOUR: Yes.

MR PRINCE: There was a request made under sections 417 and 48B of the Migration Act. Those sections allow, as it were, a last resort for ministerial intervention. It is an unfettered discretion which does not need to be exercised by the Minister and the Minister may decline from considering to exercise the discretion.

The present case is not at that stratosphere of decision making but at the anterior part where an official from the Department will make a decision according to guidelines as to whether or not to send on to the Minister an application for intervention under sections 417 or 48B of the Act and that decision is based on whether or not the application meets certain guidelines.

That anterior decision is what is the subject of the application for an order to show cause. There is a decision of – I have just received copies, your Honour – but if I could hand up to your Honour a decision of his Honour Justice Kirby in 2002 dealing with a similar type of application which his Honour heard and then ultimately dismissed. That decision, if nothing had changed, would be against the applicant and would lead to a dismissal of the application. However, some circumstances have changed.

First, when his Honour Justice Kirby was considering the official’s determination as to whether or not to forward the matter on to the Minister his Honour was considering a limited evidentiary case in which the official would simply tick a box, and your Honour sees this at paragraph 17 on page 5 of the decision. His Honour says that the document which was admitted as exhibit A1 reads as:

The Manager

Ministerial Interventions Unit

I have found that –

and then there are two options, one of which was crossed. That was the extent of the reasons. Then his Honour goes on at paragraphs 19 to 24 to deal with the sufficiency of evidence. In that case, his Honour noted that because of Osmond v Public Service Board and the state of the law there was no obligation to give reasons and none have really been given, but his Honour was obliged to accept on the face of that form that the relevant officer had considered the guidelines and assessed the application against the guidelines and had reached the relevant level of satisfaction so that there would be no basis for interfering or engaging in judicial review of that decision.

In the present case, your Honour, there are two affidavits which have been filed. It might be useful if I read them at this stage. They are, given the time, necessarily brief. Unfortunately, they appear identical on the cover page, but if your Honour goes over to the second page, one is from Mr Luke Pistol and he prepared the 417/48B application. That has an exhibit.

HER HONOUR: Yes, I have an affidavit of Luke Pistol affirmed on 1 June 2009 to which there are a number of annexures. Is that the document you are referring to?

MR PRINCE: Yes, your Honour, and given the volume of documents in the annexure, if your Honour could take it as an exhibit to the affidavit.

HER HONOUR: Yes.

MR PRINCE: There are letters within the exhibit corresponding to what he calls annexures in the affidavit.

HER HONOUR: I see.

MR PRINCE: But that might be the best way to deal with it.

HER HONOUR: All right. Now, Mr Chami, have you seen Mr Pistol’s affidavit?

MR CHAMI: Only very, very recently, your Honour.

HER HONOUR: Yes.

MR CHAMI: In respect of any objections I may take to that, subject to relevance of course, can I just make a global claim that some parts of it – well, in fact, the whole of it up to at least paragraph 12 is irrelevant because I understand the basic point in this particular case is the application made on the 27th and the Minister’s refusal on the 29th. The rest, especially the beginning of paragraph 5 concerning other previous applications, may be entirely irrelevant.

HER HONOUR: So you take an objection as to relevance up to and including paragraph 13?

MR CHAMI: Yes.

HER HONOUR: As to the balance?

MR CHAMI: As to the balance, your Honour, I take no objection to that.

HER HONOUR: Mr Prince, do you press the paragraphs 1 to 13?

MR PRINCE: I think it was 1 to 12, your Honour. Paragraph 13 looks like it is dealing with the present application.

MR CHAMI: Yes, I think that is right.

HER HONOUR: Very well. So just to clarify, Mr Chami, the objection is as to paragraphs 1 to 12 inclusive?

MR PRINCE: I think I press 1 and 2, your Honour. The rest were put in so that there would be full disclosure of the matters which had been previously applied for. So I do not press 3 to 12.

HER HONOUR: All right.

MR CHAMI: I am content with that, your Honour.

HER HONOUR: Very well.

MR PRINCE: That will eliminate a lot of the exhibit, your Honour.

HER HONOUR: Yes. Just so it is clear, paragraphs 1 and 2 and 13 to 20 are read in the affidavit of Mr Pistol. Yes.

MR PRINCE: Thank you, your Honour. The next affidavit is the affidavit of Ms Frances Milne. It is three pages long, your Honour.

HER HONOUR: I have an affidavit – two pages in terms of the body of it.

MR PRINCE: Yes, your Honour.

HER HONOUR: Yes, very well.

MR PRINCE: I read that affidavit, your Honour.

HER HONOUR: All right. Now, any objection to any part of Ms Milne’s affidavit?

MR CHAMI: Your Honour, I take objection to paragraphs 7 and 9. My reasons for paragraph 7 concerning the date, that is factually incorrect. It is the 29th. Subject to that particular amendment I take no objection to that sentence. I object to the second sentence in paragraph 7 on the basis of relevance. It is in fact comment. I also object to paragraphs 8 and 9, actually, on the basis of relevance.

MR PRINCE: Your Honour, the first sentence of paragraph 7 is not pressed. It is in Mr Pistol’s affidavit in any event. Ms Milne talks about her experience with these sorts of applications and in terms of the balance of paragraph 7, in my submission, your Honour, that would be a lay opinion qualified by 8 and 9. Paragraph 9 is a reasonable suspicion paragraph related to the need for interim injunctive relief but other than that I would not press paragraph 9. I am sorry, your Honour. I should step back and make my response clearer. Paragraph 7, the first sentence is not pressed.

HER HONOUR: The second sentence I understood to be the subject of the objection.

MR PRINCE: I think there was also an objection to the first sentence. No, your Honour, I do not press it. I will not press 7, 8 and 9. I think that is the easiest way to deal with it.

HER HONOUR: Very well. So Ms Milne’s affidavit sworn on 1 June 2009 is read as to paragraphs 1 to 6 inclusive, to which there are no objections. Is that so, Mr Chami?

MR CHAMI: Yes.

HER HONOUR: Yes, very well. Well, that is the evidence in support of the application, is it, Mr Prince?

MR PRINCE: It is, your Honour, subject to this. There is an additional document which was not dealt with in Mr Pistol’s affidavit so it is not formally an exhibit, but it was only very recently received. It is a single document headed “Minute”.

HER HONOUR: Yes.

MR PRINCE: It looks like this, your Honour, and it was separately copied by the Registry and it is nine pages and the last page has a date of 29 May 2009. Does your Honour have that?

HER HONOUR: I do.

MR PRINCE: I seek to tender that document, your Honour.

MR CHAMI: No objection, your Honour.

HER HONOUR: Very well. The document titled “Department of Immigration and Citizenship Minute” signed by Mr Leyden, Director, Refugee and Humanitarian Branch, Victoria dated 29 May 2009 will be exhibit A.

EXHIBIT A: Document titled “Department of Immigration and Citizenship Minute” signed by Mr Leyden, Director, Refugee and Humanitarian Branch, Victoria dated 29 May 2009

MR PRINCE: Your Honour, one last set of documents which I would seek to tender – I have shown my friend copies but I only have one copy of the document and it is the Ministerial Guidelines on sections 417 and 48B applications. It is my only copy and it has some marking which I would ask your Honour to disregard.

HER HONOUR: Yes.

MR PRINCE: Could I tender those two documents to your Honour?

HER HONOUR: Any difficulty with that, Mr Chami?

MR CHAMI: No, your Honour, they are policy documents.

HER HONOUR: All right. Would it assist if I get copies made of those for you, Mr Prince?

MR PRINCE: Enormously, your Honour, it would.

HER HONOUR: Yes, thank you.

MR PRINCE: Otherwise I would have to submit to your Honour from memory and my memory is not that good.

HER HONOUR: We will get copies made, Mr Prince.

MR PRINCE: Thank you, your Honour. While that is being done – that is all the evidence that the plaintiff would seek to tender on this application.

HER HONOUR: Yes.

MR PRINCE: As your Honour would have gathered, this is an application for an interim injunction to prevent the Minister from removing the plaintiff from Australia. It is proposed that the plaintiff will be removed at 10.00 am tomorrow to Sri Lanka and this application concerns an application which had been made on 27 May 2009 for ministerial intervention or consideration of the exercise of the powers under section 48B and section 417 of the Migration Act.

The second respondent made a decision on 29 May 2009 to not refer that matter to the Minister for the Minister to consider the possibility of using his power under section 48B and section 417. Your Honour sees the relevant final decision on – if your Honour goes to the exhibit which is the minute, if your Honour goes to page 8, immediately above the heading “Reasons why the request does not fall within the 417 Guidelines” your Honour will see the paragraph dealing with section 48B application. That is the conclusion.

HER HONOUR: Yes.

MR PRINCE: If your Honour goes further down the page, your Honour will see the conclusion which is in the last paragraph on the page as to the section 417 matter.

HER HONOUR: Just so I understand the background broadly, Mr Prince, section 48A provides that a non-citizen who has been refused a protection visa “may not make a further application for a protection visa while in the migration zone”.

MR PRINCE: That is right, your Honour.

HER HONOUR: Section 48B, in a circumstance in which the Minister thinks it “in the public interest to do so”, makes provision for the Minister by written notice to provide in the case of a particular non-citizen that “section 48A does not apply to prevent an application for a protection visa” being made.

MR PRINCE: Precisely, your Honour.

HER HONOUR: The 48B application goes hand in hand with the 417 application. Is that right?

MR PRINCE: That is right. They are almost always dealt with together in refugee cases. Section 417 has a broader discretion which allows the Minister to grant a humanitarian visa in certain circumstances. It is known in the vernacular as “complementary protection”, that is, that where somebody may not meet the Refugee Convention, but may nonetheless have claims for humanitarian protection in Australia. Section 417 is, if you like, the relief valve to allow the Minister to consider those additional circumstances. But it is non-compellable and the Minister’s exercise is non-reviewable. We accept that.

HER HONOUR: Yes, that is Plaintiff 134?

MR PRINCE: Yes, that is right, your Honour, which was decided around the same time as S157. Precisely, your Honour, that is it. That is why this challenge is to the anterior process as to whether or not it is referred on to the Minister.

HER HONOUR: All right. Now, in the paragraphs that you have taken me to in exhibit A, the minute, you have referred me in each instance to the conclusion with respect to the exercise of the powers under sections 48B and 417, but it would be necessary to read the whole of the - - -

MR PRINCE: Go to the reasoning.

HER HONOUR: Yes.

MR PRINCE: Of course, yes, and I was going to come to that. In some senses that may be beyond the scope of today’s application, but I will just take your Honour to a few particular aspects. In truth, what has happened in this document is a long way away from what happened in the “tick a box” decision which was considered by his Honour Justice Kirby in Plaintiff S190 in that there is a very comprehensive set of reasons and summary of the matters which were in issue.

Your Honour will see that the first four pages deal with the previous requests which had been made and then your Honour will see that there is a summary of the current request and that is summarised over to page 5. That can be broken down into, I suppose, three headings. One is “Errors with the RRT findings”, “Unprofessional conduct on the part of the applicant’s migration agent” – a Mr Sunil A De Zoysa “and [the plaintiff’s] poor mental health” and thirdly, “New information concerning harm suffered by the plaintiff’s mother during the April 2009 elections in Sri Lanka”.

HER HONOUR: Sorry, where do I find the material about the mother?

MR PRINCE: On page 5, your Honour. That is the reference to it. There is a 76-page application which is in the exhibit to Mr Pistol’s affidavit and that is where it comes from. It is summarised by the Tribunal at page 5. Then those are dealt with in subsequent headings, so they are broken down into those issues – the RRT findings, and as to the RRT findings, in those two paragraphs there is no real ultimate finding made but really more a comment on or an explanation of the nature of the submissions that were being made, that is, essentially, that the RRT had said that the plaintiff had not mentioned any problems he encountered surrounding the Sri Lankan general elections in April 2004 when, in fact, they had been explicitly mentioned in relation to his work transfer to Teldeniya which occurred in June 2004. The decision-maker goes on to note, seemingly in response to that, that there had been no mention in the submission to the Tribunal but there does not seem to be an ultimate conclusion on why those matters or how those matters were ultimately dealt with.

Then there is a dealing with the mental health issues. It seems that that is dealt with on the basis that at the time there was no medical evidence before the Tribunal. That is hardly the point in considering the later discretion under sections 48B or 417 because by definition it must include matters really which were not fully explored before the Tribunal.

I will not go through in detail, but that is to give your Honour a flavour of the nature of the decision that is being made in this case by the officer. The fundamental point is that that sort of comprehensive consideration of the claims really effectively amounts to a full consideration on the merits of the application rather than a consideration as to whether or not the gateway, as it were, should be opened to allow the matter to go before the Minister to consider whether or not he wished to intervene or wished to consider intervening.

Your Honour, if I can just take your Honour to the guidelines which the Court has copied and handed back. Am I right in thinking that those are marked exhibit B, your Honour?

HER HONOUR: They have not been, but they will be marked B, yes.

EXHIBIT B: Document titled “Ministerial powers – Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)

MR PRINCE: Thank you, your Honour. They are in two sets, your Honour. The first deals with 417 and the second deals with 48B.

HER HONOUR: Yes.

MR PRINCE: Can I ask your Honour to go to page 10 of the first document and paragraph 17. Your Honour will see that this is the part of the guidelines which deals with repeat requests and, in particular, the last paragraph on that page provides the relevant criteria. Your Honour will see from the nature of that paragraph that the – and consistent with the gateway to a very powerful personal discretion residing in the Minister that it is quite a limited test that the Department is to apply, that is, to determine whether or not:

there has been a significant change in circumstances which raise new, substantive issues not previously provided or considered in a previous request, and which . . . falls within the ambit of section 9 Public interest, section 10 Referral by a review tribunal and section 11 Unique or exceptional circumstances.

HER HONOUR: In the opinion of the Department.

MR PRINCE: In the opinion of the Department. That is a process of decision making which has occurred here and which, in my submission, at least arguably, has not been properly dealt with by the delegate in the sense that if – if your Honour goes to page 8 of exhibit A, the 417 issue is dealt with in those four paragraphs.

HER HONOUR: I am sorry, page 8 has rather more than four paragraphs. I see, yes.

MR PRINCE: In contrast, your Honour, to the very detailed consideration of section 48B, what your Honour sees here, first of all the first paragraph is a little inconsistent with the earlier observation that new material or new claims or new matters have been advanced in the application and that is at page – I am sorry, your Honour.

HER HONOUR: Can I just take this up with you. I am not sure that it should be read in that way since what is said is that the plaintiff has not provided new substantive issues not previously provided or considered in his earlier requests that bring his case within the guidelines for referral under section 417. So I would understand that to be - - -

MR PRINCE: A composite.

HER HONOUR: Yes, or at least it seems to me open to that construction. I just draw that to your attention.

MR PRINCE: Yes, that is probably right, your Honour. It goes on, though, to expose the reasoning for that by reference to credibility issues and the lack of independent evidence and then dealing with mental health, but that really is almost a substantive assessment itself of the application in the way that the Minister would assess it, rather than the circumstances where – or the limited issue for the delegate which was whether or not there were circumstances which raised new substantive issues not previously provided or considered in a previous request and which fall into the ambit of sections 9, 10 and 11. Can I take your Honour back to sections 9, 10 and 11.

HER HONOUR: Yes.

MR PRINCE: They are further back in the guidelines at page 6.

HER HONOUR: I see.

MR PRINCE: They are not sections of the Act, your Honour.

HER HONOUR: I see, yes.

MR PRINCE: Clause 9 must be an extraordinarily broad category and clearly in circumstances where a person is claiming that if he returns to Sri Lanka he may be tortured. Those would be matters which fall within clause 9.

HER HONOUR: The only thing I was going take up with you was this, Mr Prince. The guidelines deal with the approach to repeat requests in paragraph 17 and broadly, as I read it, the guideline provides that it is the Minister’s expectation that generally people who have been refused an earlier request will depart Australia, that is, generally their request will not be viewed favourably.

MR PRINCE: Yes.

HER HONOUR: In limited circumstances, where the Department is satisfied for matters that are set, it is contemplated that notwithstanding that it is a repeat request, the Minister may consider it.

MR PRINCE: Or it would be referred up.

HER HONOUR: Yes.

MR PRINCE: Because the last sentence is that if in any case other than the limited circumstances there should be a reply that the Minister does not wish to consider exercising the power.

HER HONOUR: Yes. So that in “limited circumstances” the Minister may consider it and one infers consider it with a view to a favourable determination. What I just want to take up with you is, a few moments ago you put to me by reference to paragraph 9 dealing with the public interest that it was what you categorised as a broad power, I think, and that a person who claimed to be in fear of torture would come within that broad power. One can well understand the force of that submission, but the matter that I want to take up with you is this. It may be that many people make such a claim. That would - - -

MR PRINCE: Not per se.

HER HONOUR: Indeed.

MR PRINCE: No, quite.

HER HONOUR: I suppose, Mr Prince, what I am taking up with you is this. The guidelines contemplate that within the Department an opinion will be formed or a level of satisfaction achieved.

MR PRINCE: Yes, within that ambit. So that, as your Honour noted, really it is a composite requirement or a composite test. The only reason that I would take your Honour to section 9, for example, is that if, for example, the nature of the application was so far beyond the ambit of any of those provisions, sections 9, 10 or 11, then the exceptional circumstances just would not be engaged. But ultimately what one is dealing with is a decision-making power which is not a decision-making power under sections 417 or 48B, but is, in fact, an anterior decision-making power.

The application to this Court is an application to review the decision-making process in this case at that stage. I am obviously not in a position to fully argue it to your Honour, but, suffice it to say, given that a decision is being made, given that the decision is quite complex, given that it involves findings of fact by the decision-maker as to things such as credibility and the like and discussions about what was in previous applications or not in previous applications, an issue would arise in the substantive proceedings if the applicant is not removed and allowed to pursue them. For example, some of the adverse factual findings which are made by the Minister’s officer pursuant to the guidelines would need to be subject to requirements of procedural fairness, that is, where adverse matters are being taken into account by the departmental officer. That seemed to be contemplated by his Honour Justice Kirby in Plaintiff S190, but it was not raised in that case.

HER HONOUR: That is the case you handed up to me, is it?

MR PRINCE: Yes, your Honour.

HER HONOUR: Yes, all right.

MR PRINCE: And, indeed, could not be raised because the decision was so nebulous and lacking in detail that one could not ascertain whether there were matters which were taken into account adversely which required notice to be given. Now, here there is a more fulsome set of reasons which goes through a whole series of factual matters and factual inquiries and reaches conclusions one way or the other. They have not been the subject of notification to the plaintiff of matters which may be adverse to his interests and which he may be able to comment on.

HER HONOUR: Is your contention that it is a requirement of procedural fairness that an applicant who submits an application under sections 48B and 417 is to receive written particulars or - - -

MR PRINCE: I do not know about written particulars, but - - -

HER HONOUR: All right. Is to be advised either in writing or orally of any matter that the officer of the Department dealing with the application considers may be a reason for not referring the matter to the Minister. Is that the contention?

MR PRINCE: Yes.

HER HONOUR: All right. I think I understand that, yes.

MR PRINCE: In the common law sense, not in the convoluted section 424A sense. I am not submitting that there is some sort of prescriptive requirement. Given that there is nothing in the Act about it and no preclusion in the Act of this type of procedural fairness, it would simply be common law procedural fairness and that is obviously a matter which would have to be the subject of a full hearing. It is not a type of claim which I could formulate on the run, as it were. There are clearly factual findings which are made adverse and there is clearly material which is referred to by the delegate which is adverse, or used adversely to the plaintiff. I suppose the first argument is, does procedural fairness apply or not and then, secondly, what is the content? Then if any of these matters fall within the ambit of the content, then obviously that is an issue.

There is also in the application an issue as to whether or not the decision itself is addressing the matters in the guidelines and that is something that needs to be dealt with at a final hearing. On my brief analysis of the decision, there is a real issue about that because the nature of what the decision-maker is doing here is to really almost conduct a merits review of whether or not ultimately a 417 will be granted or a 48B would be granted by the Minister as opposed to looking at whether or not there is sufficient material in the application to warrant putting the matter before the Minister.

That is a distinction which, I suppose, needs to be explored with a little bit more care than I can do now in terms of the guidelines really not conferring or delegating the section 417 or 48B power upon the officials but really simply provides a gateway so that applications can be filtered and there will be a real question as to whether or not this 76-page application is sufficient to meet that type of test or whether or not the delegate, rather than applying that sort of preliminary test, has in truth conducted a merits review about whether or not a 417 or 48B power should be exercised in the present case.

HER HONOUR: Have you formulated the order that you wish me to make this evening?

MR PRINCE: Yes, your Honour. It is the second last order which is in the application. That is order 6, your Honour. Orders 3, 4 and 5, I suppose, as well. My friend might accept that he has been served.

HER HONOUR: I might just inquire of Mr Chami what his attitude is to the application.

MR PRINCE: If the Court pleases, your Honour.

HER HONOUR: Mr Chami?

MR CHAMI: Your Honour, I still oppose the application. Your Honour, it is true that the applicant will be removed from Australia tomorrow at 10.00 am. Your Honour, in respect of the five arguments that I could actually produce from my friend’s submission, your Honour has already raised the issue of Applicants S134. Can I take your Honour to paragraphs 48 and 100. I have copies of those.

HER HONOUR: Yes. Before you do that, I simply wanted to ascertain what your position was, Mr Chami. I do not by any means want to cut off Mr Prince from more fully developing his submissions. I am conscious of time constraints, as you both would understand. I will come back to Mr Prince for a moment and then go to you, Mr Chami. Mr Prince, I do not think you had completed outlining the basis for the relief that you claim.

MR PRINCE: Thank you, your Honour. In terms of the balance of convenience, obviously if the plaintiff is removed to Sri Lanka the case becomes academic. He loses any chance to have the Minister consider his application or, indeed, loses any chance of the officers determining according to law whether his application should go before the Minister. I accept that ultimately the Minister’s power is non-compellable and non-reviewable and the Minister may ultimately reject the application even if it is sent up, but that chance means everything to my client.

HER HONOUR: What is it necessary for you to satisfy me of in order to obtain the interim relief that you seek, Mr Prince?

MR PRINCE: Your Honour, just the usual test that there is a reasonably arguable case and that the balance of convenience would favour the making of the injunction.

HER HONOUR: Now, the reasonably arguable case you identify as the obligation on the departmental officers to accord procedural fairness to an applicant for consideration under 48B and 417 of the Migration Act by advising the applicant of material that may be taken into account adversely to the determination of the recommendation to the Minister, is that - - -

MR PRINCE: Precisely, your Honour. Yes, that is, I suppose, the clearest expression. There are other grounds, of course, which are in the application which refer to the extent and nature of the decision-making process that is required or entrusted to an officer under the guidelines and whether or not the decision in this case has exceeded that power which has been conferred on the officer and/or mistaken the nature of the power conferred on the officer. That is the limb that I was endeavouring to develop concerning whether or not in truth this is a gateway decision that has been made consistent with the guidelines or whether in truth the officer has in fact really made a merits determination of the ultimate success of the application.

So those really are the two main prongs at this stage. There are some other grounds which are included in the application which was prepared before we had access to these reasons, which are exhibit A. It may be that, upon careful reflection and reviewing the reasons, some of those grounds fall away, but I really am not in a position to concede any of those grounds at this stage having only briefly reviewed the decision, but I obviously do that. On those two grounds alone, in my submission, there is a sufficiently arguable case in areas of known administrative law principles which would be proper matters for the Court to determine. There is no question that it is novel ground. There is no question that I cannot point to express authority which says that these types of decisions are subject to requirements of procedural fairness.

However, given the nature of the decisions which are being made and the significance of those decisions to plaintiffs in my client’s position, in my submission, there would be a strong inference open that procedural fairness may well be available in these sorts of decision-making processes. Indeed, it appears that his Honour Justice Kirby considered that such a prospect might be open when his Honour dealt with S190.

His Honour in the decision-making process did not, for example, reach conclusions that procedural fairness could not be available in these sorts of cases or that it is not open to attack, these anterior types of decisions, in an ABT v Bond type sense. There were no general determinations of principle made by his Honour. Ultimately, his Honour really dismissed the application on the basis of the insufficiency of the evidence and the nature of the reasons which were given.

HER HONOUR: Are there particular passages in the judgment that you rely on, Mr Prince? If so, it would help me if you would take me to them.

MR PRINCE: Yes, your Honour, I will. For example, your Honour will see at paragraph 20, that is dealing with the natural justice. His Honour simply noted that there was not any claim in that case. His Honour did not decide, for example, whether or not it could be excluded. Your Honour will see, for example, at paragraph 21 that his Honour was concerned that there was no incumbency to provide reasons. That was obviously irrelevant given his Honour’s comments about the nature of the document at paragraph 22. Here the decision is different because whilst there might not be an obligation to provide reasons the decision-maker has taken it on himself to do so which provides material which may allow for judicial review or for some consideration of the matters such as those which were raised in the proposed application.

HER HONOUR: Turning then to the second of your submissions, Mr Prince, which is that an examination of the reasons of the departmental officer is suggestive that the departmental officer did not understand the task that he was undertaking.

MR PRINCE: Yes, your Honour.

HER HONOUR: If you can take me to the matters in exhibit A which you say make an arguable case of that character.

MR PRINCE: For example, your Honour, the matters which are at – and I am sorry this is so nebulous – but from page 4 all through to page 7 each of the particular elements of the submission that are addressed are addressed in terms. I have not had time, your Honour, to go through the 76 pages to work out whether or not there were matters which were not considered, but just dealing with the matters which were considered, for example, although it is acknowledged that there is a submission that the RRT misunderstood statements and, in fact, made erroneous findings of fact, that is not ultimately clearly dismissed. All these add up to something which I will take your Honour to in a moment.

The mental health consideration simply considers whether or not there was medical evidence before the Tribunal at the time demonstrating mental health issues. It did not consider the substantive question of whether or not, in fact, the plaintiff was suffering from mental health problems at the time of the Tribunal hearing. In respect of the incident in Colombo, over at page 6, the third paragraph on the page there is a notation that the “new information was not provided in” the protection visa “application, RRT appeal, or any of” the previous ministerial intervention “requests”. Then the observation is made that it contradicts information in the Foundation House report that the plaintiff “was held for ‘three days’ by someone in Colombo”.

Whether or not it does, what the Tribunal is looking at there is whether or not it can dismiss that matter, that is, whether there is some basis for rejecting the factual matter which is raised as opposed to considering whether or not the application raises a new substantive matter which falls within the ambit of some areas. So it is really making a merit assessment about whether or not to reject or accept the matters which were raised in the application rather than simply addressing itself to whether or not new substantive matters are raised by the application itself.

HER HONOUR: I must say, I would read it as dealing with submissions that Mr Pistol had put.

MR PRINCE: Yes, but it does so in a way where it is, if you like, entering the fray about whether or not that in truth happened rather than whether or not a claim is being made. That is the distinction, your Honour.

HER HONOUR: Yes, I understand. Paragraph 17 contemplates that the Department will acquire a level of satisfaction.

MR PRINCE: As to whether new matters are raised.

HER HONOUR: As to whether there has been a significant change in circumstances which raise new substantive issues. It is contemplated in the guideline that the departmental officer will make an evaluative judgment, as I read the guideline. I have some difficulty in understanding - - -

MR PRINCE: Yes. Then with the second limb of the argument.

HER HONOUR: I am having some difficulty understanding some of the submissions that you are putting in support of the second argument, Mr Prince, in light of that.

MR PRINCE: I understand that, your Honour. I suppose the question of whether or not the new – I accept what your Honour says. That particular aspect that I was taking your Honour to probably is an evaluative assessment and the premise of my argument is probably not ultimately right. I suppose that leaves open a question of whether or not, in issues where there is a satisfaction formed by a departmental officer, the scope of judicial review open to reviewing the way in which that level of satisfaction has been reached. For example, if the findings were – and from memory, the application includes a claim about Wednesbury unreasonableness, but if the - - -

HER HONOUR: Mr Prince, if you have to kill a point on Wednesbury, you had better take me to it.

MR PRINCE: The ground is item 4.

HER HONOUR: Just bear with me.

MR PRINCE: My view of killer points of Wednesbury may not necessarily be universally accepted, but certainly in respect of, for example, the mental health claim at page 5 - - -

HER HONOUR: Just let me turn that up.

MR PRINCE: Your Honour, there is a claim in the application which I understand was a fairly fulsome claim, that in substance the applicant was not mentally fit at the time of the RRT hearing. That is simply dealt with in the paragraph at the bottom of page 5. Only by reference to whether or not the claim had previously been put to the RRT and whether or not he had provided any medical evidence demonstrating mental health issues presumably to the RRT. That is what that means.

HER HONOUR: Yes.

MR PRINCE: Rather, that is an unreasonable process for considering the matter which was before the officer because what the officer was bound to consider was whether there had been any change in circumstance from the time of the RRT hearing so that the second half of the equation - - -

HER HONOUR: I am sorry, Mr Prince, but I really – as I read this paragraph, and it is on page 5 of exhibit A under the heading “Mental health”, the officer is again dealing with the submissions advanced by Mr Pistol. Mr Pistol’s contention, as summarised by the officer, is that the plaintiff was suffering from PTSD symptoms at the time of the Tribunal hearing. It is in that context that the officer notes that that claim was agitated before the Tribunal. The Tribunal came to a view about it, namely, that it saw no signs of mental health problems, nor was there medical evidence to support them. Now, I think you were taking me to this part of the officer’s reasons for decision to support a Wednesbury ground and, on the face of it, that seems to fall somewhat short.

MR PRINCE: Your Honour, I have just been instructed that – this is the difficulty dealing with Wednesbury at such an early stage, it is demanding at the best of times – but I am told that it is incorrect that the claim was put to the RRT at the time. So if that is right, then an error like that, of such importance, if it is an error which the decision-maker then relied on, if there was no reasonable basis for that conclusion, then there would be Wednesbury unreasonableness there. I am sorry, your Honour.

HER HONOUR: Not at all, Mr Prince, but you do have to satisfy me that you have an arguable case. If your arguable case is that it was unreasonable for the officer not to form an opinion that there had been a significant change in the plaintiff’s circumstances raising new substantive issues not previously provided in previous requests, then it would be necessary to take me to some material that would make that contention good at least prima facie.

MR PRINCE: Would your Honour just give a moment?

HER HONOUR: Yes, Mr Prince.

MR PRINCE: I would have to make that proposition good, your Honour, by going to the application for 417 and 48B, which is exhibit LP1. I do not have a copy of it, your Honour. The Court has the only copy.

HER HONOUR: LP1 appears to be a letter addressed to the Minister dated 28 May 2009. Is that the document that you have in mind, Mr Prince?

MR PRINCE: Yes, that is the document your Honour, and it is a substantive application and there should be following on from it some 76 pages. Could I just say, your Honour, before I delve into this that in terms of the reasonable arguable requirement, if at least the claim about procedural fairness is reasonably arguable, then the interim relief would flow because whether or not ultimately there were other grounds which could support the same application – once there is one ground which is reasonably arguable - - -

HER HONOUR: Indeed.

MR PRINCE: Yes. Perhaps I can deal with it in that way, your Honour, given the time and also given the nature of the type of grounds which are further alleged and the intricacy which necessarily is involved in them. I accept that establishing Wednesbury unreasonableness is a heavy burden and going through and dealing with each of the elements of the decision compared to the guidelines is also going to be difficult, but at the very least, as his Honour Justice Kirby noted, natural justice is an area where there are – one could not say, in my submission, that natural justice could be excluded in this case nor that, on the material which is before the Court, the prospect of the applicant having any success on a natural justice argument could be excluded and that there would be, given the nature of the factual matrices which were taken into account and it seems the uncontroversial fact that there was no consultation in any form with the plaintiff prior to the reaching of a decision, that those two matters together would give rise to a reasonably arguable basis for a natural justice ground for a jurisdictional error or judicial review.

HER HONOUR: I am not sure that you are not reading rather more into Justice Kirby’s - - -

MR PRINCE: I am sorry, your Honour, I started saying something and then I moved on to my own submission.

HER HONOUR: I am sorry.

MR PRINCE: I do not say that his Honour Justice Kirby said that by any means. His Honour did note that procedural fairness is a fertile ground for judicial review. That is hardly an extraordinary proposition.

HER HONOUR: Indeed.

MR PRINCE: I would put that to your Honour, but also indicate that this case does not suffer from the same deficiencies which the case before his Honour Justice Kirby suffered from in the sense that there is a claim here of a denial of procedural fairness. There is prima facie evidence that factual matters adverse to the applicant and personal to him were taken into account by the decision-maker and there is prima facie evidence that the plaintiff was not consulted about any matters which might be adverse to his interest prior to the making of the decision.

HER HONOUR: In circumstances in which the statutory scheme is one that confers on the Minister an unfettered discretion which it is accepted is non-justiciable and in circumstances where no challenge is made to the guidelines that the Minister has promulgated in relation to the exercise of his non-justiciable discretion - - -

MR PRINCE: Your Honour, the guidelines, in my submission, are not guidelines for the exercise by the Minister of his discretion.

HER HONOUR: I accept that, Mr Prince. What I intended to convey was this. As I understand it, you do not challenge that it is open to the Minister to do as the Minister has done and to indicate that generally he is not disposed to personally reviewing applications that are repeat applications by reason of his expectation – just let me turn it up – in paragraph 17 of the guidelines the Minister says that he generally does “not wish to consider a repeat request”. He goes on to refer to the limited circumstances in which a repeat request may be referred to him, those limited circumstances involving the formation by the Department of an evaluative judgment concerning significant change in circumstances raising new substantive issues not previously dealt with.

MR PRINCE: Yes, your Honour.

HER HONOUR: As I understand it, Mr Prince, there is no challenge to it being open to the Minister to approach his discretion consistently with the expression that is found in paragraph 17 of the guidelines.

MR PRINCE: That is right, your Honour.

HER HONOUR: The decision of the departmental officer dealing with the application is one which you accept is not subject to an obligation to give reasons.

MR PRINCE: Yes.

HER HONOUR: What do you rely on to assert the requirement that the departmental officer - - -

MR PRINCE: Accord procedural fairness.

HER HONOUR: Yes.

MR PRINCE: Because the departmental officer is entrusted with a decision-making function which has the potential to seriously and adversely impact upon an individual. Indeed, the very broad nature of the discretion

conferred on the Minister personally makes it imperative that officers of the Department exercise their functions as officers of the Commonwealth in the most rigorous way, because by advancing to the Minister or not advancing to the Minister an application, they are therefore really interceding in a broad and personal discretion which the Parliament has conferred on the Minister personally. So that Parliament has given a very, very broad trust to the Minister. It is done so personally. There is reporting to Parliament. It is a most serious matter.

If officials are allowed to effectively intercede in that process without being subject to judicial review, then the potential exists for the subverting of the statutory scheme and there is nothing to indicate that Parliament wished to extend the protection afforded to the Minister, or the broad power afforded to the Minister, to the officials. Indeed, they are mutually exclusive. Because the power is exercised personally by the Minister, ergo the Parliament did not want officials making these sorts of decisions. If the officials are not subject to judicial review, then there is a possibility that the legislation might not be properly administered. It is a different decision, your Honour, and that is why – we accept that the Minister’s decision cannot be challenged, but that is because he is the Minister and he is answerable to Parliament and he is in a different position and - - -

HER HONOUR: The difficulty I have, Mr Prince, is that you also accept that it is open to the Minister to approach the exercise of his broad discretion in relation to repeat applications in the way that he has laid down in paragraph 17 of the guideline.

MR PRINCE: Yes, but it is the administration of that guideline which is the issue and the fact that he effectively creates a decision-making power vested in officials which is not expressly subject to the protection or scope of power conferred by Parliament, and if his power under sections 417 and 48B is not delegable, then the actions of the official stand outside of that concept.

HER HONOUR: I understand.

MR PRINCE: Thank you, your Honour.

HER HONOUR: Yes, Mr Chami.

MR CHAMI: Your Honour, can I start with what I think I can encapsulate what your Honour is saying in terms of the logical conundrum. The logical conundrum is this, that the Minister is vested with a particular power which is non-compellable, yet Mr Prince argues essentially if an officer of his in terms of considering what is a policy document does not follow it, can in fact make a mistake and come to this Court and essentially seek judicial review in respect of the policy. It was decided many years ago, in cases such as Drake for example, that no officer of any Commonwealth department must follow policy. They can, in fact, entirely disregard it. That is the fatal flaw in the argument of the applicant in this particular case. Even if the policy were read like an Act of Parliament, as Mr Prince has impressed upon you, that could not give rise to any jurisdictional error.

Can I take your Honour to the words of paragraph 17 concerning repeat requests. Although your Honour read parts of it, I just wish to emphasise the part concerning the limited circumstances. After starting from the initial position that the Minister does not wish to see repeat litigants making such applications, it says, “In limited circumstances, a repeat request may be referred to me”. There is absolutely no duty or obligation imposed in this document anywhere which requires any of the officials under the Minister to in fact even refer the matter to the Minister.

In respect of the argument itself concerning procedural fairness, I heard Mr Prince at one stage say it cannot be said that natural justice is excluded from such decisions. If that is as high as the argument goes for the applicant, that could not meet the required test for an injunction, which is essentially a prima facie case and balance of convenience. In respect to the procedural fairness, there are two arguments to that, your Honour. The words of sections 417 and 48B(6) make it clear that:

The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

A very similar subsection is included both for 48B and 417. In those circumstances where there is not even a duty of any sort for the Minister to consider the application, how could it be said that an official who is acting essentially for the benefit of the Minister concerning such requests, needs to, for example, write and give the applicant procedural fairness in terms of some sort of written document as to what he is minded to do about any adverse information? In point of fact it could not even be a factual level.

There could be adverse information in this particular case because the 76-page submission made by the applicant was considered and the summary of those 76 pages which the applicant seeks to attack is nothing more than a summary which the delegate, or the officer – I should not use that word – the officer in the particular case deduced from the entire 76 pages. There could be no unfairness in that and any step beyond considering those particular matters, that is, the 76 pages, was in fact an

exercise of the thought process of the particular person, that is, the particular official concerned. There was no additional adverse information and in that circumstance at a factual level the claim cannot be made out because he did not consider any additional information which was not known to the applicant and Mr Prince does not identify any.

HER HONOUR: Yes.

MR CHAMI: Finally, your Honour, in respect of the decision which Mr Prince seeks to use to support the arguments, there is nothing in the two paragraphs which your Honour asked him directly to identify in support of his argument – Mr Prince referred to paragraphs 20 and 22 – there is not a single skerrick of support for the claim made by Mr Prince that there could be inferred in any of the things said by his Honour Justice Kirby that a procedural fairness requirement could be imported into either section 48B or section 417.

Finally – I think I have used that word twice now, your Honour – paragraphs, I think, 48 and 100 of Applicants S134 make it clear that in circumstances where there is a non-compellable power, and even assuming that jurisdictional error were to be found in respect of the decision of the Minister – and I digress here to also include the expression “the Minister’s official” – mandamus cannot issue to compel the Minister, or one of his delegates, to reconsider making a decision such as that that arises from 48B or 417. That is as much as I wanted to say. I am certain it is 100, but I think it is paragraph 48.

HER HONOUR: Yes, it is paragraph 48 in the judgment of Justices Gaudron and Kirby and - - -

MR CHAMI: Justices Gaudron and Kirby were in the minority in that case. I think they are at 100, your Honour.

HER HONOUR: Yes, I am sorry.

MR CHAMI: The result was exactly the same.

HER HONOUR: Just let me go back. Yes, 48 is in the joint reasons of the Chief Justice and Justices McHugh, Gummow, Hayne and Callinan and the minority on this point, Justices Gaudron and Kirby, agreed with respect to mandamus insofar as section 417 was concerned.

MR CHAMI: Yes, your Honour. Thank you, your Honour.

MR PRINCE: Your Honour, can I just deal with that just briefly for a couple of matters that my friend just raised. First, your Honour, going back to paragraph 17 of the 417 guidelines, that is exhibit B. Your Honour, the use of the word “may” in the last paragraph was said to indicate that there was no obligation on an officer of the Department to form an opinion, that is that – I am sorry - - -

HER HONOUR: I do not believe that submission was made.

MR PRINCE: No, I am sorry, your Honour. Some significance was sought to be attributed to the use of the word “may”. Your Honour, in my submission, the use of the word “may” is not determinative of the nature of the power being exercised by the officer in that the Minister’s direction makes it clear that in other cases, that is, cases which do not fit the criteria for limited exceptional circumstances, the Department should reply on behalf of the Minister saying that the Minister did not wish to consider exercising the power, that is, that there is a binary role given to an officer if the requirement is fulfilled. It is only when requirement is not fulfilled that they are being directed to reply on behalf of the Minister that nothing will be done.

In my submission, that direction in the policy – and I think I have said this enough – but it is a different function to the section 48B, section 417 function itself. Were it the case that the simple answer to this question was that because the Minister cannot be compelled, no one else can be compelled, then the decision in Applicant S190 would have been decided on that point. There is no indication in his Honour’s reasons that the distinction which was sought to be drawn between the nature of a decision was determinative of that application. That, in my submission, supports the submission that it is at least arguable that this is a different type of function which is being undertaken to the function which is entrusted to the Minister personally.

Your Honour, the legislation provides that it is the Minister who cannot be compelled to exercise his power under section 48B or under section 417 of the Act. It is often said that the question of procedural fairness will often takes its flavour from the nature of the decision-maker making the decision. It is consistent with that principle that, where there is express language in the statute concerning the Minister making a personal decision, that it be a non-compellable, non-reviewable power. But when one is dealing with an officer who is administering a set of guidelines which indicate a predisposition by the Minister, one is dealing with a different function being undertaken and the same policy considerations for precluding judicial review or preserving those actions from judicial review do not apply.

The Act could easily have extended to every aspect or every action of any officer considering a section 417 or 48B application but did not and reposed the power personally in the Minister. So that in terms of it being reasonably arguable – and that is obviously the issue here – in my submission, it is reasonably arguable that this decision-making function is in a different category to the personal power vested in the Minister. If it were a challenge to the guidelines, the question would be different, but, as I have said, this is not a challenge to the guidelines.

HER HONOUR: No.

MR PRINCE: The guidelines themselves do not preclude any notion of those sorts of decisions being made contrary to procedural fairness, for example. The guidelines themselves indicate that a level of satisfaction will be reached, that a decision-making process will occur, which will precede the Minister’s consideration of whether or not to exercise a power under sections 48B or 417. It is no different to any other administrative act in the Department by an officer of the Department upon which so much depends ultimately. So it is a difficult matter, your Honour, there is no doubt about it, but it could not be said, in my submission, that it is not reasonably arguable. I do not submit, I have not submitted that the absence of any exclusion of procedural fairness in the statute in these circumstances is the end of the matter.

I submitted to your Honour that here it is arguable that procedural fairness applies to this type of function. It is, as my friend conceded, not a delegated decision being made. My friend said that they are not a delegate. It is at least arguable that it is a different nature of decision. It involves a different process. It is not expressly excluded by the statute. More importantly, it is reasonably arguable that here a range of matters were considered adversely to the applicant.

HER HONOUR: The difficulty I have, Mr Prince, is a point that Mr Chami raised and it is this. The applicant puts on an application. The application is considered by a departmental officer in accordance with the Minister’s guidelines. The officer is considering, in the passages that you have taken me to, the various submissions that were advanced in the application. When you speak of the officer relying on adverse information with the contention that it was incumbent on the officer to draw that material to the applicant’s attention, on the face of it, on the material you took me to, what the officer is doing is reviewing the submissions that were made in the application.

MR PRINCE: Your Honour, I took your Honour to, for example, page 5 under the RRT findings, “The RRT also noted that in the course of” – I am sorry, that is not what I was going to take your Honour to. For example, if your Honour goes to page 6, the paragraph I took your Honour to at the end of the paragraphs “Incident in Colombo”. The fact that the:

new information was not provided in [the plaintiff’s] PV application, RRT appeal, or any of his previous MI requests. It contradicts information provided to the Department in the Foundation House report of 9 February 2009 –

I am sorry, I withdraw that. For example, the paragraph below that “Attack on [the plaintiff’s] mother”:

No reason has been provided for why this report was not provided to the Department with [the plaintiff’s] fourth MI request.

Now, the fact that it was not provided to the Department with the fourth MI request appears to be a matter which is taken into account adversely to the applicant. It is not clear at this very early stage whether – well, in fact, he was not asked to comment on any matters ultimately. What is being said there is that the absence of any reason being provided why it had not been provided into the Department was a factor, but that was not put to him as being in issue. Ultimately there are a whole range of factual findings which just – for example, if your Honour goes down to the bottom of page 6:

This request is the first occasion on which [the plaintiff] has claimed that he was made to worship the SLFP at work and was covered with blue water. He has not provided a reason for why this information was not provided with his PV application and RRT submission –

and then there is a presumption about what Mr Pistol would believe, but there is no opportunity to comment on that proposition. There is a speculative answer which is given. There is new documentation which is dealt with over that page at page 7, but, for example, your Honour will see in the penultimate paragraph on page 7 an issue about:

The fact that the translator was a Level 2 interpreter rather than a Level 3 interpreter is not significant – Level 2 interpreters are frequently used by the RRT where a Level 3 interpreter is not available, and there is no independent evidence to suggest that the interpreter was unable to do his job to a competent level in this instance.

These are the sorts of things that one would expect to be raised as issues with the plaintiff for comment if the rules of procedural fairness apply because they are being used adversely to the plaintiff’s interests and, indeed, to some extent lead to hypothetical or speculative responses which might have been made had the questions been asked. So that, in my submission, the nature of a decision which has been made and the complete absence of any attempt to raise these matters with the plaintiff for comment,

in my submission, is sufficient to raise a prima facie case that there may have been a denial of procedural fairness.

MR PRINCE: On the other side of the equation, what is the harm in allowing the applicant to have his case heard and determined in an orderly and orthodox way? If there are 76 pages of material to go through, there is a lengthy decision which has been received this afternoon and there are prima facie issues which arise just from a brief examination of the material, I simply do not know what might arise once I take proper instructions and look through the 76 pages and it may be that some matters have not been taken into account.

All of that is on one side. There is no statutory preclusion of this type of proceeding on the other side. The claims which are made are made within recognisable areas of administrative law which could give rise to judicial review and if the injunction is not granted he will never be able to ventilate these cases in any meaningful way and, on the other side, there is no prejudice in the injunction being granted and the matter proceeding before the Court in a fulsome way. No submission has been made to that effect.

Given the very, very serious consequences which may inure if the plaintiff is right, and if he has not had a chance to have these matters dealt with in accordance with law and given the complete absence on the other side of any prejudice in allowing the matter to go ahead, in my submission, relief would be granted, even if it is for a short time to allow proper consideration to be able to be given to his case.

HER HONOUR: Mr Chami, you did not make any submission concerning balance of convenience. Mr Prince says to me that he needs a short time in which to better formulate the case that he seeks to make. What do you say to that?

MR CHAMI: Your Honour, no amount of reformulation of the pleaded ground is likely to succeed. In terms of the balance of convenience, the applicant has until tomorrow at 10.00 am. I should point out section 198(5) and (6) of the Act, the Minister is obliged to, in fact, remove an unlawful non-citizen, which the applicant is, as soon as reasonably practicable. In terms of the “reasonably practicable” aspect of it, your Honour, your Honour should have that minute. I think it is exhibit A. It sets out a chronology of sorts concerning the applicant’s previous judicial review applications. Your Honour will see that on 4 November 2005 an application was made for a protection visa that was decided by the Tribunal in 2006. The appellant appealed some three months later to this Court, which was then remitted.

HER HONOUR: Yes. I appreciate there has been a long history, Mr Chami, but just directing attention to the consideration of balance of convenience. I understand that the Minister puts that arrangements are in place for the applicant to depart Australia tomorrow at 10.00 am. You put nothing further on that aspect. Your main point is the futility as you contend of the - - -

MR CHAMI: Quite, and that there is no prima facie case.

HER HONOUR: Yes. Mr Prince, in light of the nature of the Minister’s unfettered discretion and the passages to which reference has been made in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 of 2002 [2003] HCA 1; (2003) 211 CLR 441 at 461, paragraph 48 and at 474, paragraph 100 - - -

MR PRINCE: Your Honour, I did not address those paragraphs in my submissions. Could I briefly do that now?

HER HONOUR: By all means.

MR PRINCE: Your Honour, those paragraphs go no further than dealing with what this case would be like if a challenge were being made by a decision of the Minister or a refusal to consider an application by the Minister.

HER HONOUR: So you seek to mount a challenge at an anterior point articulating a novel proposition concerning the requirement that the departmental officer considering at first instance the application in light of the guideline is subject to a duty to accord procedural fairness by way of the provision, either in writing or orally, of particulars of adverse information based on the application.

MR PRINCE: That is so, your Honour, and, in my submission, that does not do any damage to the scheme of the Act in terms of the very broad discretion conferred on the Minister. It is a not a backdoor attempt to seek review which could not otherwise be sought because the nature of the decisions which are being made is very different. So that, for example, if this case were to be successful and the officer ultimately refer the matter up to the Minister, if the Minister then chose not to exercise a discretion or to ignore the request there would be nothing for the applicant to do. But what the applicant wants is the mere chance that that will be looked at by the Minister one way or the other and the very different nature of the people who are exercising each step of the function is important to the statutory scheme. In my submission, S134 is distinguishable and, were it not, S190 would have been decided on different grounds.

HER HONOUR: Was the argument put in S190?

MR PRINCE: I do not know that the argument was not put. I was in it. My best recollection is that an issue about the super discretion, as it was, was advanced. I do not have the transcript but - - -

HER HONOUR: But you were in it and you - - -

MR PRINCE: I was in it and that is my recollection of how it went.

HER HONOUR: All right. Mr Chami, if I were to stand this matter over to Friday of this week, just in practical terms, what difficulty does that occasion in terms of prejudice to your client? The matter that concerns me, Mr Chami, is just in the last moments of this application Mr Prince, who was in Applicant S190, tells me that his recollection is he put such a submission to Justice Kirby. I have not had the opportunity to read the decision. It is now 10 past 6 at night. If the submission was argued on that occasion and there is any support to be found in it, it may give some strength.

MR CHAMI: I hear what your Honour says, but can I just disagree on the point about adding some strength because Applicants S134 was in fact entirely decided after S190 and it could not be, as a matter of logic, your Honour, that where a Minister is not compelled to do something there could be a transmogrification of such non-compellable duty upon one of his officials to in fact do it. It just cannot be the case. But in terms of the question you asked regarding difficulty - - -

HER HONOUR: Yes.

MR CHAMI: I am speaking at a very general level now, your Honour. In respect of some applicants the Department actually arranges for their removal on a group basis, sometimes particular flights are booked to remove them. I cannot tell you that this particular applicant is one of those people who requires special escorts and whatever else. I will have to take an instruction if your Honour wishes a complete answer to it, but I was speaking at a very general level concerning this matter, the particular applicant’s or any particular applicant’s removal from Australia. It is not just a commercial flight, for example, not always a commercial flight.

HER HONOUR: I see.

MR CHAMI: Your Honour, I have a document. In terms of the notice of removal I think the applicant has this. He is, in fact, booked on a Thai Airways flight tomorrow at 10.00 am departing from Sydney to Bangkok, then Bangkok to his country of destination. I have no further information.

HER HONOUR: Thank you, Mr Chami. Would you just bear with me. I am just going to look at the reasons in Applicant S190. Mr Prince, as Mr Chami points out, Applicant S190 of 2002 was decided before Applicants S134 of 2002.

MR PRINCE: Yes, that is right.

HER HONOUR: His Honour entertained consideration of whether, on the material before him, it could be said that those dealing with the application at the departmental level had come to a decision that was, pursuant to the guidelines, Wednesbury unreasonable and he found no basis for that.

MR PRINCE: Yes, your Honour.

HER HONOUR: There is nothing to which you have drawn my attention to suggest that the applicant’s application was dealt with by officers of the Department in a way that is Wednesbury unreasonable. I appreciate at an early stage you maintained reliance on that being your ground 4, but really nothing has been - - -

MR PRINCE: I cannot put anything particular to your Honour at this stage.

HER HONOUR: No. In the circumstances then it stands or falls on the contention that there was an obligation on the officer to draw to your client’s attention the matters that the officer took into account as part of that officer’s reasoning in coming to the evaluative judgment that paragraph 17 of the guideline provides in a context in which it is not suggested that the decision is vitiated by Wednesbury unreasonableness or something of that character.

MR PRINCE: It is suggested that it could be vitiated by Wednesbury unreasonableness, but at this stage, given that I got the decision very shortly before coming up to the Court, I cannot take your Honour to specific instances of it in a sufficient way to really deal with it. I am not conceding that it is not affected by Wednesbury unreasonableness. I simply do not know at this stage. I would know, I expect, by Friday. I think, your Honour, in S190 could I just ask your Honour to have a look at paragraph 11. It might give some clue. His Honour said in the middle of the paragraph:

It is not necessary for me to decide what would have been the case if the Minister had not personally considered the applicant’s application under s 417 of the Act.

There the challenge was made to the anterior process but there had been a letter signed by the Minister personally which showed that the Minister had dealt with the 417 or 48B. But the question is what was put before him and what went up to the Minister, as it were. I can only say to your Honour that it is a long time ago. It is 2002. I am pretty confident that the transcript is available on AustLII because I have looked at it before but I have not brought it up with me.

I expect that the question of whether or not these issues were ventilated before his Honour – there was a half-day hearing. Most of it was me on my feet, but from recollection there might have even been some written submissions. Mr Lloyd appeared for the Minister. The argument in S134 was heard in September, which was a month before this matter came on before his Honour. My best recollection is that the issues which were ultimately determined in S134, at least the nature of the power that the Minister had, were in issue but I cannot say more than that to your Honour.

In my submission, to get to a point where that could be entirely excluded simply by reference to a particular power vested in the Minister personally, given that this is a novel argument, when there has only been such a short time to consider the matter and there is nothing to indicate that alternative arrangements cannot be made in respect of a commercial flight or any significant loss that might arise by reason of making alternative travel arrangements - - -

HER HONOUR: It would be reasonable for me to infer that that commercial flight booked on Thai Airways will be - - -

MR PRINCE: A flexible ticket maybe. I do not know what arrangements have been made, but ultimately if I am wrong – he is in detention. There is no flight risk. There is nothing presenting the possibility that he might not be removed if ultimately he is unsuccessful. If the Court pleases.

HER HONOUR: Mr Chami, Mr Prince presses on me that he has a recollection that his Honour Justice Kirby considered at least an argument having some of the planks that he wishes to convince me would establish a prima facie case. It is now after quarter past six.

MR CHAMI: I understand and fully appreciate what your Honour is saying. Your Honour, can I suggest this?

HER HONOUR: Yes.

MR CHAMI: At the end of the day, the decision needs to be made concerning the two relevant elements of.....The balance of convenience issue and the transcript issue which I am having my young solicitor check, could that be dealt with tonight by Mr Prince in terms of he can read that when he gets back to chambers and issue a note or an email to all of us, including your Honour’s associate, concerning any particular support and your Honour could then publish what your decision is and I can inform my client that essentially they can look forward to some sort of judgment tomorrow morning before 10 o’clock. If they need to bring him back from the airport that is a matter that the Department can - - -

HER HONOUR: I have just been turning my mind to these things, Mr Chami. I would have thought your client would have to be at the airport by not later than 8.00 am.

MR CHAMI: Yes, most likely, your Honour.

HER HONOUR: Practically speaking, I think there are difficulties with me publishing my reasons before 8.00 am simply in terms of having the Court open and transcription people here and so forth. You appreciate, Mr Chami, I am having difficulty seeing that Mr Prince has established a prima facie case but against that, if Justice Kirby heard argument on the matter for half a day and if there is to be found some support for the proposition that Mr Prince wants to develop, it is necessary only for him to establish a prima facie case.

I do not want to cut him off from that, so the other alternative is to stand it over and give him till Friday morning. Mr Chami, I do not know, but I would assume that it is not uncommon for people to be in your client’s care removed – presumably arrangements of this character are made fairly frequently. I do not know the practical difficulties, but - - -

MR CHAMI: Yes, your Honour, that is the case.

HER HONOUR: Yes.

MR CHAMI: There are practical difficulties, but if your Honour says “Be here Friday” we will do our best to ensure that we are here and the applicant is not removed. Is your Honour actually making some sort of intermittent order in the meantime that Mr Prince only look at that transcript and refer you to the particular passage or any reference in that passage?

HER HONOUR: Mr Chami, what I have in mind doing – I would not confine him in that way – would be to stand the matter over before me to Friday morning with a view to Mr Prince then having had the opportunity to marshal the arguments that he wishes to present. I do not cut you off from persuading me that his prospects are forlorn and that I should not do that. My concern is as I have indicated to you. On the face of things it is an argument that Justice Kirby appears to have entertained, albeit in a context that it was argued shortly before the decision in Applicants S134. We are going around in circles, Mr Chami, but you understand what I am saying.

MR CHAMI: We are. I understand fully.

HER HONOUR: What I have in mind in answer to the question that you asked would be an order restraining the first respondent by his agents and delegates from removing the prosecutor from the migration zone of Australia before midday on Friday, 5 June. Now, what do you say to that?

MR CHAMI: Your Honour, I am happy with the order in terms of the framing of the order, but of course I do not want to say anything glib about not having to - - -

HER HONOUR: I understand, yes. Well, you understand, Mr Prince, you still have a way to go.

MR PRINCE: Yes, I understand, your Honour.

HER HONOUR: But I do not want to cut you off. All right, what I will do then is to - - -

MR CHAMI: Your Honour, I have the transcript. We will deal with it on Friday.

MR PRINCE: There is a very small issue and my recollection must be better than I thought, your Honour. I thank your Honour. In terms of programming the matter before your Honour for Friday, I am before Justice Perram at 9.00 am for an argument on privilege against self-incrimination in an industrial matter in making directions. I expect that that will be finished by 10.00 am. If the Court could sit at 10.15 - - -

HER HONOUR: All right.

MR PRINCE: If your Honour would be prepared – I know I am asking a lot, but if your Honour could accommodate me in that way I would be very grateful.

HER HONOUR: Mr Chami, 10.15 suit you on Friday?

MR CHAMI: Yes, your Honour.

HER HONOUR: In terms of order 6, which I will slightly re-craft, if I were to make the injunction until 2.00 pm on Friday, 5 June, does that – you do not want to be heard on that, Mr Chami, nor you, Mr Prince.

MR CHAMI: No, your Honour.

HER HONOUR: Very well. I will stand the application over to 10.15 on Friday, 5 June 2009. I order that the first respondent, by his agents and delegates be restrained from removing the prosecutor from the migration zone of the Commonwealth of Australia before 2.00 pm on Friday, 5 June 2009. There are no further orders to make at this stage?

MR PRINCE: No, your Honour.

HER HONOUR: Yes. I will adjourn.

AT 6.29 PM THE MATTER WAS ADJOURNED