Sandhu v Minister for Immigration and Border Protection & Anor [2016] HCATrans 90 (15 April 2016)

Last Updated: 18 April 2016

[2016] HCATrans 090

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M200 of 2015

B e t w e e n -

GURJEET SINGH SANDHU

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

BELL J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 APRIL 2016, AT 10.19 AM

Copyright in the High Court of Australia

MS G.A. COSTELLO: Your Honours, if it please the Court, I appear with MR A.F. SOLOMON-BRIDGE, for the applicant. (instructed by Da Gama Pereira & Associates)

MR S.P. DONAGHUE, QC: If it please the Court, I appear with MS C.L. SYMONS, for the respondent. (instructed by Clayton Utz Lawyers)

BELL J: Thank you. Yes, Ms Costello.

MS COSTELLO: In the beginning, on 8 January 2009, Mr Sandhu applied for a skilled visa of a particular kind. In relation to that visa, he put forward a skills assessment from the Trades Recognition Authority, he put forward evidence of his qualifications, that being in particular a Certificate III in Food Processing and a Diploma of Business Management, and he nominated his occupation as pastry cook. The delegate refused the visa. The reason for the delegate’s refusal was on PIC 4020 grounds.

PIC 4020 has a sting in its tail. PIC 4020, the provision, is annexured to the applicant’s submissions and you will find it on application book 73. That was the criteria that the delegate’s decision turned on. Mr Sandhu applied to the Migration Review Tribunal for de novo merits review of the delegate’s decision. The Migration Review Tribunal affirmed the refusal. There were two reasons for the Tribunal’s decision. One was a PIC 4020 finding and the second was a finding about another criteria, that of close relationship between Mr Sandhu’s qualifications and his nominated occupation of pastry cook.

Mr Sandhu applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. His application was dismissed and then he appealed to the Federal Court and on 26 June 2015 Justice Logan allowed the appeal but gave Mr Sandhu something of a pyrrhic victory.

This case raises interesting questions about two criteria: PIC 4020 and closely related. It raises interesting questions about three cases of wide application, that being SZBYR, Minister v Dhillon and Prodduturi v Minister.

BELL J: Ms Costello, as I understand it, you do not seek to challenge SZBYR, but rather to distinguish this case on the basis that there were two consequences that flowed from the decision on PIC 4020, is that right?

MS COSTELLO: Yes, your Honour, I do not seek to challenge the correctness of SZBYR, but SZBYR in the pluralities decision, in fact the thrust of that judgment was to find that the alleged problem with the Tribunal’s decision under section 424A was not made out. They said in dicta something about the exercise of a discretion not to apply certiorari. This case, on the other hand, turns very strongly on when the discretion not to grant certiorari should be exercised and also when declaratory relief should be used to try to get rid of some of the consequences of a decision that is otherwise left in place. Now, the Migration Act when you look - - -

BELL J: Certiorari is clearly a discretionary remedy. Your argument is, at application book 67, paragraph 24, that there is not a principled basis to withhold certiorari in circumstances in which a declaration is made, as it were, as an alternative remedy. That is at the heart of your argument, is it?

MS COSTELLO: Yes, that is one of the issues at the heart of our argument, your Honour. But the other issues that this case raises are these six issues. Should a purported merits review that is affected by a jurisdictional error be given continuing legal effect where there is a possibility of a different outcome if it is remitted?

NETTLE J: There would not have been a possibility of a different outcome by the decision-maker even if they had not made the mistake.

MS COSTELLO: With respect, your Honour, we submit that there was a possibility of a different outcome.

NETTLE J: But why would it affect the decision on closely related?

MS COSTELLO: The reason is that in fact Justice Logan found that the Tribunal had erred in its construction of the closely related provision. Then what Justice Logan did was to engage in, in our respectful submission, a form of merits review in making his own attempt to consider whether the qualifications of Mr Sandhu were closely related to his nominated occupation. In the approach that Justice Logan took in doing that, he took a different approach to the Full Federal Court’s approach in the case of Dhillon.

In the Full Federal Court’s case of Dhillon, there were some similarities. It was again a nominated occupation of pastry cook and even similar qualifications. What the Full Federal Court in the case of Dhillon found was that there had been no error in the way that the Tribunal had made its findings on the closely related criteria and the Tribunal had made a finding that was open to it. Here what Justice Logan did was to say that there had been a misconstruction of the criteria in closely related, but that inevitably the Tribunal would find that the qualifications were not closely related to the nominated occupation, so there is no point sending it back.

So at the heart of our submissions, your Honours, is that if a Federal Court on judicial review finds that a decision is affected by jurisdictional error in relation to both of the reasons that the decision is affirmed, then usually it should be remitted to be determined according to law. Instead, quite unusually, what Justice Logan did here was to try instead to quash some of the consequences of this wrong decision whilst leaving it in place, whilst seeking not to disturb the decision in itself.

GORDON J: You sought that relief.

MS COSTELLO: No, your Honour, with respect, we did not. The applicant did not seek that relief, and that is why when the respondent said that in the respondent’s submissions, the submissions of the applicant to the Federal Court were exhibited in an affidavit of my instructing solicitor, because the disposition sought – and it is at application book 899 – the disposition sought in the written submissions of the applicant to the Federal Court were that it be remitted to the Tribunal because there had been an error in relation to the closely related finding, or that it be sent back to the Federal Circuit Court to sort out the arguments regarding the PIC 4020 finding.

NETTLE J: You dispute Justice Logan’s conclusion that if the closely related test were properly applied, the Tribunal could not have come to any decision other than that it was not sufficiently closely related?

MS COSTELLO: Yes, we do, your Honour.

GORDON J: That is paragraphs 27 to 29 of his judgment at application book 49. Is that the bit?

MS COSTELLO: Yes, your Honour. Think about a croissant or a danish, think about where you obtain yours. The person who makes that for you, it is helpful if they know how to make it and how to sell it. What we are talking about here is the relationship between someone’s qualification in both cooking and business and being a pastry cook.

Many other tribunals had in the past found that there was a close relationship between a management course and the nominated occupation, a pastry cook. In the Full Federal Court’s decision of Dhillon, what the court found was that it had been open to the Tribunal to find that there was not a close relationship and that there was no error in the way that the Tribunal so found. What Justice Logan did instead was to find that there had been error in the construction of closely related but that in the end those two things could not be seen as closely related.

Now the timing is interesting because just after Justice Logan handed down this decision, the Full Federal Court considered in much more detail the test of closely related in another case of Talha v Minister for Immigration and went into a lot more detail about how it is that the relationship between those two things should be considered and again in that case, the conclusion of the court was to say, well, it is open to the Tribunal to find it either way.

So, what Justice Logan should have done in order to conduct the judicial review process lawfully is to consider is there jurisdictional error and if there is presumptively, it should be sent back for remittal. What SZBYR actually tells us is that if there is a plank upon which the decision rests and it is a lawful one, not affected by error, then it may be futile to remit it. But that is not this case. The question as identified by the High Court in SZBYR and summarised indeed in the respondents’ submissions at application book 78, paragraph 7, is that:

certiorari and mandamus may be refused notwithstanding a finding of jurisdictional error if the impugned decision was supported on a discrete and independent basis that was not affected by error.

So, the application of SZBYR as it stands to this case was wrong by Justice Logan because he found that there was an error in the finding on closely related. In this case there was no discrete and independent basis unaffected by error.

If you look also at paragraph 29 of the plurality’s judgment in SZBYR, and 28, what the case stands for is that the discretion to decline to make the relief of certiorari or mandamus may be exercised if it is just. Here it was not just not to send this matter back for de novo merits review. The Migration Act sets up a scheme whereby there is a delegate’s decision, there is a merits review and then there is judicial review. This applicant was deprived of merits review because a decision affected by jurisdictional error is no decision at all. He did not get his merits review. He should, he should get it. So it should have been sent back for that to happen.

The other issue thrown up by this case is the question about whether the mechanism declaration in relation to the MRT’s PIC finding could be effective to disturb the delegate’s PIC finding. If you consider specifically the provisions of 4020, which are set out in application book 74, you will see that subclause (1) is the criteria itself and that subclause (1) criteria had to be satisfied at the time of decision, that is that:

There is no evidence before the Minister that the applicant has given, or caused to be given -

to various recipients:

a bogus document or information that is false or misleading in a material particular in relation to:

(a) the application for the visa –

or a previous visa application. Then the sting in the tail of this clause 4020(2) where it says - and this affects later visas:

The Minister is satisfied that during the period:

(a) starting 3 years before the application was made; and

(b) ending when the Minister makes a decision to grant or refuse the application;

the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

The effect of PIC 4020, the effect of that is that if you fail to satisfy the criteria when getting a visa because you do not satisfy 4020(1), then in later visa applications you cannot have the visa if that was a finding made within the last three years.

In the case of Prodduturi, the Full Federal Court found that the Federal Circuit Court and Federal Court have no jurisdiction to interfere with a delegate’s finding of a PIC 4020 refusal. So, at the moment, on the state of the law, there is a lack of harmony between the decision of the Full Court in Dhillon and the Full Court in Prodduturi.

BELL J: In this submission you are responding to the matters put by the respondent in paragraphs 11 to 13 of the respondents’ submissions. I did not detect the Prodduturi argument in your application. Am I wrong about that? I thought you were making a different point about the effect on the family, of the determination.

MS COSTELLO: Yes, your Honour, it is something raised by the respondent and addressed in the reply. The issue is that, in our submission, the errors in Justice Logan’s judgment are readily apparent but today there needs to be something that makes this case worthy of the High Court’s attention. At the moment there is a difference in two Full Federal Court authorities, that being Prodduturi and Dhillon, about how in judicial review a court views the effect of a PIC finding.

This is an ideal vehicle to resolve that and this is a provision that is found in almost every visa, this criteria. So, all over the country, people have to satisfy this PIC 4020 and if we are at a stage, which we are at the moment, where a lot of courts are following the pattern of Dhillon as cited in both parties’ arguments, they are following Dhillon and they are saying, well, we can just do this declaration to try and get rid of the consequences of the PIC 4020 finding. We do not need to send it back to the Tribunal and that is an important question because the rationale for declining to grant certiorari was in utility. It would be futile to send it back.

How ironic then that the very declaration that was made might have had no utility, on the state of the law in Prodduturi which says the Federal Circuit Court and the Federal Court just do not have jurisdiction to get into the delegate’s PIC finding. So, it remains open. It can be debated either way as to whether the PIC finding is made by the delegate or whether it is remade by the Tribunal when the matter comes up for merits review.

Another important issue is, and one that is of great application to everyday arguments about jurisdictional error, is how much a court should get into a style of merits review in looking at whether the decision was really open to the Tribunal and that, in our respectful submission, is what Justice Logan did in the way that he looked at whether it was inevitable that the qualification could not be seen as closely related to the nominated occupation. He went about making the decision himself. That is not how it should work.

BELL J: Did not his Honour look at the list of criteria for what constitutes a pastry cook and apply those findings that were based on the determination below to his conclusion in relation to the closely related criterion?

MS COSTELLO: He did not go into very much detail at all about the findings but if you look at what he did find on application book 49, he said something a little impenetrable at paragraph 28. He said, firstly at 27:

The real vice, and it is one relied upon by Mr Sandhu, is that error lies in analogy. The language chosen by the Governor-General in Council in making the Regulations was not “directly transferable”, but rather “closely related”.

BELL J: The matter I was taking up with you was in paragraph 28 when his Honour refers to the finding of fact that was unchallenged by the Tribunal.

GORDON J: Set out at paragraph 16 of his Honour’s reasons as well, where he identifies that there is no allegation in relation to either of those matters. It is at the bottom of page 43.

MS COSTELLO: It was, with respect, a bit curious; his Honour’s reasoning that the finding of fact was unchallenged. The challenge made by the applicant before him was a challenge to the correctness of the reasoning of the Tribunal in relation to closely related. In the world of judicial review, you have to find a legal error. There was a legal error found; the Tribunal had not applied the right guidelines and that was established. But then what the judge did was to make his own merits review effort to look at the ultimate question, and he found that it would inevitably not be seen as closely related.

That decision of Justice Logan was handed down on 6 August 2015. On 25 August 2015, the Full Federal Court handed down its judgment in Talha v Minister for Immigration. What the Full Federal Court showed in that case was quite a level of careful consideration that had to go into the role of considering the relationship between those two things.

BELL J: I think you have taken us to that case before.

MS COSTELLO: If I have not addressed your question, there was a ground added before the Federal Court relating to the closely related ground, although it was not argued in the Federal Circuit Court.

BELL J: The red light is on, Ms Costello.

MS COSTELLO: Yes, certainly. I was just making sure that I had said everything. Those are the submissions, your Honours.

BELL J: Yes, thank you. Yes, Mr Donaghue.

MR DONAGHUE: Your Honours, Justice Logan’s judgment below involved an orthodox refusal of constitutional writs on discretionary grounds in circumstances where, notwithstanding the fact that his Honour had identified a jurisdictional error in the decision below, there was an independent basis for the decision which had not been successfully impugned. Your Honours can see the essential reasoning that Justice Logan adopted on page 51 of the application book at paragraph 38, where his Honour says:

The case is not one though for sending back to the Tribunal for a hearing on the merits. That is because Mr Sandhu cannot overcome the separate difficulty of his failure to comply with clause 886.211(2)(b).

That is a reference back to paragraph 28 in his Honour’s judgment, which your Honours have already mentioned.

NETTLE J: Well, that is the issue, is it not? Is the judge right there when he says that the law did not permit any answer other than that to which he came?

MR DONAGHUE: On the finding of fact, in my submission, yes, because - - -

NETTLE J: The finding of fact being, what, the nature of the business degree, or something else?

MR DONAGHUE: In my submission, your Honour, paragraphs 13 and 16 is where your Honours need to go to give content to that. There is a reference at 13 to the relevant clause that was mentioned in paragraph 38, “pastry cook”, and then he says at the end:

what was entailed in the occupation of a pastry cook, the Tribunal made a finding of fact found at paragraph 50 –

so there is that list of issues. Then in paragraph 16, as your Honour Justice Gordon has already mentioned, his Honour says there was no suggestion –

that the Tribunal was not reasonably entitled to conclude, as it did at paragraph 50 . . . that the features of the occupation . . . were as there stated.

NETTLE J: Just pausing there, what is said against you is that in coming to that conclusion, the Tribunal approached the task incorrectly. That is correct, is it not?

MR DONAGHUE: It is correct that that is what is now said against us - - -

NETTLE J: No, is it correct that they approached it incorrectly?

MR DONAGHUE: That the Tribunal approached it incorrectly?

NETTLE J: Yes.

MR DONAGHUE: Your Honour, that was emphasised this morning by my learned friend. As I understood her submissions - - -

GORDON J: Or finds reflection in the last sentence of paragraph 27 of Justice Logan’s - - -

MR DONAGHUE: Well, it is 26 and 27, I think, what my friend is talking about - - -

GORDON J: That is what we are putting to you.

MR DONAGHUE: In 26, there is a finding of the wrong guidelines, but it is said it is “a distinction without a difference”, so that goes nowhere. In 27, the proposition is that the error is that the new guidelines do not properly conform, in Justice Logan’s view, to the regulation. The criticism, insofar as there is one, is that the Tribunal, in referring to the new guidelines that have been promulgated, referred to guidelines that did not marry up perfectly with the regulation. What his Honour does not do is say “and that was a jurisdictional error”.

Instead, what he says is, in paragraph 28, applying the law – and I am doing this in a slightly roundabout way, your Honour Justice Gordon, because I do not understand our friends to be saying that the law summarised by Justice Logan in paragraphs 22 and 23 of his reasons is wrong. There does not seem to be an argument to that effect, and the more recent case to which my friend refers consistently with those authorities says there is a judgment to be made; it has not said that the judgment that was made here was not one that was open to the Tribunal, and here, the Tribunal made a judgment against the applicant.

NETTLE J: It is a question of fact and degree whether the qualification is sufficiently closely related to the occupation sought to be practised.

MR DONAGHUE: Yes.

NETTLE J: It was open to the Tribunal, apparently, to come to the conclusion which it did.

MR DONAGHUE: Yes.

NETTLE J: The only question is whether, in so coming to that conclusion, it erred in law in such a respect as to constitute a jurisdictional error.

MR DONAGHUE: Yes.

NETTLE J: Did it?

MR DONAGHUE: No, in my submission, and - - -

NETTLE J: Because the only error it made was to look at the wrong guidelines?

MR DONAGHUE: Yes – was to look at the wrong guidelines, which involved a distinction without a difference, but there is no finding – and in my submission, no basis to find – that when the Tribunal reached the conclusion that it did, it misapplied the law as set out by Justice Logan at 22 and 23. I should say, your Honour, that the way that the argument has been developed this morning entirely collapses the questions about remedies and declaratory refusal, et cetera – all the ground 1 issues have been collapsed into the ground 2 and 3 issues, because unless our friend wins on the point your Honour just put to me, they have effectively conceded that there is not a basis for criticising the relief that was issued. I may have put that too quickly, but - - -

NETTLE J: It is all very simple. Was the Tribunal bound to come to the decision which they did as a matter of law, and did they err in coming to their decision if they were not so bound?

MR DONAGHUE: Your Honour, I do not say that the Tribunal was bound. My submission is that it was open to the Tribunal to make the factual finding that it made.

NETTLE J: Justice Logan seems to go further in the last three lines of paragraph 28.

MR DONAGHUE: In my submission, what Justice Logan is saying there is that on the facts as found, there is only one possible answer. It is not to the point, we say, that if you went back to the Tribunal and they ran a different evidentiary case, that it might be possible to get an evidentiary conclusion; that may well be so. But on the findings of fact that the Tribunal made, there was only one possible answer, is what Justice Logan says.

BELL J: But, at paragraph 27, it does seem that his Honour is concluding that the Tribunal applied an incorrect legal test to the determination.

MR DONAGHUE: It is a little obscure but your Honours will notice that this was an extant judgment. So, in my submission, it should not be scrutinised overly, finally, for that reason. In my submission, what his Honour was doing there is saying the Tribunal failed to pick up the change of guidelines, the new guidelines are a little unfortunate, but, in my submission, what in 28, in the first line, he accepts the Minister’s submission that, correctly understood on the true construction of closely related and on the factual findings, there was no error made.

If that is right, then there is an independent basis for the decision and if that is right, we submit, there is nothing wrong with the declaration that was made which was not a declaration that the decision was infirm. On the contrary, it was a decision that – Justice Logan’s decision was that the refusal to grant the visa was a valid refusal but the declaration clarifies the basis on which the decision was made which is a useful thing to do if you have a disqualifying criteria like PIC 4020 which does not turn on the fact that there is a decision, just the fact of a decision. It turns on the fact that there is a decision made on a particular basis.

So, if your Honours turn in Justice Logan’s judgment at the start at paragraph 3 on page 39, you will see that right in the middle of the page, just above paragraph 4, the operation of the criteria bites to create this pre-inclusion period where someone not just is refused a visa but is refused a visa because of a particular factor. If a decision is made on two bases, one because of the particular factor, one not, the declaration can say, this decision should not be treated as a factor made on that basis and thereafter PIC 4020 will not bite in relation to it.

So, had Justice Logan been correct that the Tribunal’s decision was capable of being a decision of the kind there described, then it made perfect sense to make the declaration that he made because it would have a foreseeable consequence in protecting the applicant from that form of reasoning. I say, had his Honour been correct, because – and this is the Prodduturi point – in fact, to the extent that our friends’ case depends on this decision having had two consequences, one consequence being refusal of the visa, one consequence being triggering the preclusion period – Prodduturi says the Tribunal’s decision did not trigger the preclusion period. The delegate’s decision triggered the preclusion period which is a consequence of the fact that when the Tribunal affirms a delegate’s decision, the delegate’s decision remains the operative decision, not the Tribunal.

An attempt was made to bring that point to this Court last year. Your Honours, Justice Nettle and Gordon heard the special leave application in Prodduturi and dismissed it. So, in our submission, there was an argument there. There is a Full Federal Court judgment precisely on the point which the Court has previously declined to take. If that judgment is correct, then the Tribunal’s decision – it did not have two consequences, it only had one, and it had a consequence that was supported on the independent grounds.

NETTLE J: Do the applicant’s wife and children have the benefit of the declaration or do you say that there is no issue estoppel as between them and the Commonwealth?

MR DONAGHUE: Your Honour, in my submission, they do have the benefit of it and it is not a question of estoppel because of being bound by

the declaration. The declaration establishes the basis upon which the decision concerning the applicant was made and that basis can only – the decision can only have had a single basis. Once it was not made on a particular basis for the applicant, it cannot have been made on a different basis for his family. So, if it is not made on a particular basis for the applicant, the family get the benefit of it, in my submission.

So, in the face of Justice Logan’s declaration, there is no foundation for the proposition that there is a preclusionary period that bites and we submit his Honour’s judgment is not attended by sufficient doubt to warrant the grant of leave. Unless there is anything further, your Honours, those are our submissions.

BELL J: Yes, Ms Costello.

MS COSTELLO: Your Honours, Mr Solomon-Bridge will make the reply.

BELL J: Yes.

MR SOLOMON-BRIDGE: If it please the Court, something has emerged this morning which was not quite apparent in the Minister’s submissions. Can I take the Court very briefly to page 82 of the application book and the Minister’s proposition there? The Minister, in writing, defended Mr Justice Logan’s decision on the closely related point by saying, about six lines down the paragraph of 21:

that no error was alleged in relation to the construction of the “closely related” criterion –

So, it was a reference to those Dhillon-type cases where, effectively – rather, the Prodduturi Case, I should say – where the prosecutor has not sought to impugn an independent basis for decision and, therefore, it simply cannot achieve the remedy which is sought because of that independent basis.

I hope my learned leaders demonstrated to your Honours that, in fact, it was, as a matter of fact, challenged and so much is evidenced in the decision itself at paragraph 27. I think Justice Bell referred us to it. And we certainly say that there is no basis whatsoever for interpreting that as some sort of musings on how the Tribunal might have in an immaterial way disposed of the criterion on the closely related ground. Rather, that was a finding of jurisdictional error and the meat of it then comes in the subsequent paragraphs where his Honour says there is futility in certiorari and, presumably, the mandamus because on remitter, using almost a sniff test, cannot possibly be the case that a business management diploma is related to a pastry cook - I mean, it just does not make sense.

BELL J: As I understand it, the Minister contests that, at paragraph 27, or anywhere else, Justice Logan concluded jurisdictional error with respect to the closely related criterion on the basis that his Honour said it was, as it were, a distinction without a difference referring to the - - -

MR SOLOMON-BRIDGE: No. There were several severable arguments that my learned colleague put as a trial counsel, the first of which was that it simply referred to the wrong ministerial guidelines and it turns out that they had been supplanted by a substantial identical one so he says that does not make a difference, really. But, he did say the vice – his words, his Honour’s words – the vice is that still, according to the previous decision he cites, including Uddin and others, that it is used directly transferrable – which was the language of the guidelines – to supplant the statutory language which is closely related. Once you latch upon directly transferrable as the touchstone, or the criterion, departing from the actual statutory language by way of delegating legislation, then you have made a jurisdictional error and he holds as much.

Because of the Minister’s change of position this morning, the other thing which we might have otherwise addressed in submissions is this idea of whether it was open. That is, whether the Tribunal could have come to the decision on that independent basis, how that feeds into futility. SZBYR and the Canadian cases and Ex parte Aala which it relies upon, talk about the result being inevitable on remitter.

Once a procedural fairness complaint is made out, the question, according to Stead, and other well-known cases in this Court, is could a different result possibly have been achieved. It seems to have been conceded by my learned friend, Dr Donaghue, that, in fact, a different result might have been achieved but it was open to the Tribunal. That is not sufficient for SZBYR purposes. It must be inevitable and for that reason, we have said in the submissions, that it was not enough for Mr Justice Logan to say this is the sort of thing which was open to it. He had to conduct the sort of merits review which would put it beyond doubt that no other reasonable tribunal, acting lawfully, could come to a different result. He has not done that.

NETTLE J: Is that not what he says at 28?

MR SOLOMON-BRIDGE: I took my learned friend to say that that is not what he says, that it was open, so it is really rebutted to that. We embrace your Honour Justice Nettle’s characterisation of it and we say that

is wrong for all the sorts of reasons that were put out in grounds 2 and 3; that is, there was evidence. Can I take your Honours briefly to - - -

BELL J: I understood Mr Donaghue to say if the matter went back and on a different evidential basis, it might be open to come to a different conclusion, but is not what his Honour is saying at paragraph 28 on the evidence that was before the Tribunal there was no other conclusion?

MR SOLOMON-BRIDGE: Yes, we say that is erroneous. Can I take your Honours very briefly to application book 13 and the continuation of paragraph 47? This is the Tribunal’s decision noting the submission that in fact the Department had on many other occasions come to a different result on the same precise nominated occupation and diploma; that is, that they were closely related.

GORDON J: That is Mr Donaghue’s point. It may be a different factual basis. You might get a different result. That is not this case.

MR SOLOMON-BRIDGE: Well, I can only say, your Honour, that there was evidence before Mr Justice Logan that other tribunals with precisely the same facts had come to different results and my submission about SZBYR is that it has to be a criterion of inevitability on remitter, particularly with procedural fairness complaints. The plaintiff cannot be left with a barren victory such as here when he is told, well, it was not inevitable but it was open. Now, that is the short submission. I notice the red light, but I do say that we do press vehemently the ground 1 points which are said to have been conceded.

BELL J: The Court will adjourn to consider the future course of the matter.

AT 10.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.04 AM:

BELL J: In our opinion, there are insufficient prospects were special leave to be granted that the appeal would succeed. Special leave is refused.

MR DONAGHUE: I would seek costs, your Honour.

BELL J: With costs.

MS COSTELLO: As the Court pleases.

AT 11.04 AM THE MATTER WAS CONCLUDED