Re Refugee Review Tribunal; Ex Parte Aala
[2000] HCA 57(Judgment by: Gaudron J, Gummow J)
Re Refugee Review Tribunal; Ex Parte Aala
Court:
Judges:
Gleeson CJ
Gaudron JMchugh J
Gummow JKirby J
Hayne J
Callinan J
Subject References:
Immigration
Refugees
Review Tribunal
Failure to afford procedural fairness
Prosecutor de-nied opportunity to be heard on matters affecting credibility
Whether prosecutor denied possibility of a successful outcome
Administrative law
Constitutional writs
Nature of Constitutional writ of prohibition
Procedural fairness
Availability of writ of prohibition for failure to accord procedural fairness
Whether prohi-bition available as of right or by discretion
Whether application should be rejected due yto delay
Constitutional law
Construction of Constitution
Meaning to be given to words in s75(v)
Rele-vance of meaning at time of commencement of Constitution
Words and phrases
'a writ ... of prohibition', 'procedural fairness', 'prerogative writ'
Legislative References:
Constitution - s 75(iii); s 75(v)
Migration Act 1958 (Cth) - The Act
Case References:
-
Judgment date: 16 November 2000
Judgment by:
Gaudron J
Gummow J
[7] The first respondent is the Refugee Review Tribunal ("the Tribunal"), established under Div 9 (s457-s470) of Pt7 of the Migration Act 1958 (Cth) ("the Act"). The second respondent is the Minister responsible for the administration of the Act, the Minister for Immigration and Multicultural Affairs ("the Minister").
[8] The prosecutor is an Iranian citizen who arrived in Australia in 1991. The Tribunal found that he had been a "low level" employee of Savak, the secret police of the former Shah, that he had an insignificant involvement with the Mujahadeen, which opposed the regime established after the fall of the Shah, and that between approximately 1981 and 1988 he had been involved in the sale of properties of the former Shah and his associates. The Tribunal was not satisfied that, in the years before the prosecutor came to Australia, the interest in and treatment of the prosecutor by the Komiteh (the "morals police") amounted to persecution. Nor were the arrest and alleged execution, after the prosecutor's departure, of his business colleague, Ali Tehrani, events from which any adverse consequences might flow to the prosecutor. The result was that the prosecutor did not satisfy the Tribunal that he had a well-founded fear of persecution in the necessary sense.
[9] The prosecutor was previously the applicant and appellant in litigation in the Federal Court of Australia against the Minister. The jurisdiction of the Federal Court was that conferred by Pt8 (s474-s486) of the Act. The litigious history and the relevant factual findings by the Tribunal are detailed in the judgment of Callinan J. However, it is convenient to refer here to some aspects of that history, and will be necessary to do so in further detail later in these reasons.
[10] The result of previous exercises of the judicial power of the Commonwealth has been an affirmation by the Federal Court of the decision of the Tribunal, in turn affirming the determination of a delegate of the Minister not to grant the prosecutor a "protection visa" [2] . Nevertheless, in the present proceeding in this Court under s75(v) of the Constitution, the prosecutor seeks orders to the contrary effect, namely orders quashing that decision of the Tribunal and requiring the Tribunal to redetermine the application to review the determination by the delegate.
[11] No relief is sought from this Court which would quash the order of the Full Court dismissing the appeal from the order of Branson J affirming the decision of the Tribunal. Nevertheless, the effect of the relief sought in this Court would be to outflank and collaterally impeach the respective rights and liabilities under the Act of the prosecutor and the Minister by quashing the administrative decision which the order of the Federal Court affirmed.
[12] The pursuit of this course is open to the prosecutor as a consequence of the holding in Abebe v The Commonwealth [3] that Pt8 of the Act is valid. The present significance of Abebe is its rejection of a proposition that the right put in issue in the Federal Court application under Pt8 was the right of the Minister to act upon or to give effect to the decision of the Tribunal, rather than a right to have that decision set aside on one or other of the grounds permitted by s476. The ground upon which relief is sought in this Court is one denied consideration by the Federal Court by para(a) of s476(2). This specifies as a ground upon which an application may not be made to the Federal Court a complaint:
"that a breach of the rules of natural justice occurred in connection with the making of the decision".
[13] In this Court, the prosecutor obtained an order nisi requiring the Tribunal and the Minister to show cause before the Full Court why prohibition should not issue, why certiorari should not issue removing the decision of the Tribunal into this Court to be quashed, and why mandamus should not issue directing the Tribunal to consider according to law the prosecutor's application for a protection visa. It will be apparent that the claims for certiorari and mandamus are consequential upon that for prohibition.
[14] The power of this Court to issue certiorari is not stated in Ch III of the Constitution. Rather, in a matter such as the present, the conferral of jurisdiction to issue writs of prohibition and mandamus implies ancillary or incidental authority to the effective exercise of that jurisdiction. In the circumstances of this matter, that includes authority to grant certiorari against the officer of the Commonwealth constituting the Tribunal [4] . The matter may also attract the exercise of the powers conferred in general terms by s31 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") [5] .
[15] The prosecutor asserts that prohibition lies because the decision of the Tribunal was made beyond its jurisdiction. This was because it was made in breach of the rules of natural justice, and the Minister will act upon that decision unless prohibited from doing so. The relevant "rule" of natural justice is that requiring procedural fairness.
[16] This raises important, and threshold, questions respecting the meaning and scope of the term "prohibition" in s75(v) of the Constitution. In particular, there are questions whether a denial of procedural fairness by an officer of the Commonwealth, such as the officer constituting the Tribunal in this case, results in the officer exceeding jurisdiction or, even if it does not do so, whether prohibition nevertheless may lie. Acceptance that prohibition would lie even if there had been no action which was taken or threatened in want of or in excess of jurisdiction would cut across the basic proposition that prohibition in s75(v) is concerned with the prevention of ultra vires activity by officers of the Commonwealth. There is a further question whether, as a matter of discretion, prohibition may be refused, particularly where any denial of procedural fairness is classified as "trivial".
[17] Before considering the merits of the complaint of the denial of procedural fairness, it is convenient to turn to these threshold questions. We conclude that (i) the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction in respect of which prohibition will go under s75(v); (ii) if there has been a breach of the obligation to accord procedural fairness, the consequences of the breach were not gainsaid by classifying the breach as "trivial" or non-determinative of the ultimate result - the issue is whether there has or has not been a breach of the obligation; (iii) the practical content of the obligation, and thus the issue of breach, may turn upon the circumstances of the particular case; and (iv) the remedy of prohibition under s75(v) does not lie as of right, but is discretionary.
Prohibition, procedural fairness and s75(v) of the Constitution
[18] S75(v) may not add to the jurisdiction conferred by s75(iii). It appears that s75(v) was included as a safeguard against the possibility that the provision in s75(iii) respecting matters in which a person being sued on behalf of the Commonwealth is a party would be read down by reference to decisions construing Art III of the United States Constitution [6] .
[19] Nevertheless, in R v Federal Court of Australia; Ex parte WA National Football League [7] , Barwick CJ referred to the term "prohibition" in s75(v) as importing "the law appertaining to the grant of prohibition by the King's Bench". However, in the operation of s75(v) of the Constitution, terms such as "prohibition" and "jurisdiction" are not simply institutions or concepts of the general law. They are constitutional expressions [8] .
[20] The term "prerogative writ" came to be used in England with respect to prohibition and other writs because they were conceived as being intimately connected with the rights of the Crown and to ensure that the prerogative was not encroached upon by disobedience to the prescribed structure for the administration of justice [9] . In Australia, the Parliament consists of the Queen, the Senate and the House of Representatives (Constitution, s1) and the executive power of the Commonwealth is vested by s61 in the Queen and is exercisable by the Governor-General as the Queen's representative. However, save perhaps provision in s72(i) for appointment of judges by the Governor-General in Council, the Crown is not an element in the Judicature established by Ch III. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd [10] , Deane and Gaudron JJ said that, taken together, s75(iii) and s75(v) had the effect of ensuring "that there is available, to a relevantly affected citizen, a Ch III court with jurisdiction to grant relief against an invalid purported exercise of Commonwealth legislative power or an unlawful exercise of, or refusal to exercise, Commonwealth executive authority".
[21] What is thereby enforced is the fidelity required by covering cl5 to the Constitution itself rather than any fidelity owed to the Crown as a particular element in the constitutional structure. The term "prerogative writ" has been used as a convenient shorthand, particularly to differentiate in s75(v) writs of mandamus and prohibition from an injunction. But it is an inapt description of any remedy granted by a court exercising the judicial power of the Commonwealth. If any shorthand expression is to be used, "constitutional writ" would be preferable.
[22] Prohibition goes against officers of the Commonwealth in circumstances not contemplated by the Court of King's Bench and not within the expression "excess of jurisdiction" as understood in England. Thus, an officer of the Commonwealth may be restrained by prohibition in respect of activity under an invalid law of the Parliament or of activity beyond the executive power of the Commonwealth identified in s61 of the Constitution. Further, the common law did not have to take into account the errors of a superior federal court in determining the constitutional limits of its own jurisdiction, a point developed by Brennan J in R v Ross-Jones; Ex parte Green [11] . Hence the force of the statement by Mason, Brennan and Dawson JJ in Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association [12] :
"The jurisdiction of this Court to grant prohibition under s75(v) of the Constitution directed to a non-judicial tribunal is not necessarily governed by the same principles as those which govern the common law jurisdiction of a superior court to grant prohibition to an inferior court."
[23] Nevertheless, in considering the particular relationship between prohibition, excess of jurisdiction and denial of procedural fairness, some assistance is derived from considering the state of affairs in the administration of prohibition both in England and in the Australian colonies at the time of the commencement of the Constitution, and thereafter.
[24] The phrase "a writ ... of prohibition" has no meaning other than as a technical legal expression. The same is true of the term "patents of inventions" in s51(xviii) which was construed in Grain Pool (WA) v The Commonwealth [13] . An appreciation of the essential characteristics of such an expression is assisted by an examination that involves legal scholarship in preference to intuition or divination. The examination appropriately may include the understanding of that expression at the time of the commencement of the Constitution and thereafter.
[25] That is not to adopt the proposition that the Constitution should be interpreted merely with the text in one hand and a dictionary in the other [14] . Nor is it to tie constitutional interpretation solely to past states of affairs. However, on analysis, it may appear that the limitation which the Minister contends attaches to s75(v), so that it does not authorise prohibition where the complaint is of denial of procedural fairness, did not apply to prohibition as understood at the commencement of the Constitution. If that be so, and this limitation is not required for the adaptation of the remedy for the exercise of the judicial power of the Commonwealth under s75(v), then it should not now be read into the constitutional provision.
[26] We begin with New South Wales legislation enacted in the first year of federation. S32 of the Industrial Arbitration Act 1901 (NSW), which established the Court of Arbitration, provided:
"Proceedings in the court shall not be removable to any other court by certiorari or otherwise; and no award, order, or proceeding of the court shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature on any account whatsoever."
In The Master Undertakers' Association of NSW v Crockett, Isaacs J said [15] :
"By s32 no power exists of appeal or review of its decisions, always supposing, of course, they are within its jurisdiction and not contrary to natural justice."
[27] This indicates that breach of the rules of natural justice did not go to jurisdiction, but nevertheless might lead to the quashing of the proceedings in question. Earlier, in Ex parte McShane [16] , Hargrave J had said that prohibition issued out of the Supreme Court of New South Wales on two grounds:
"where there is want of jurisdiction, and where the proceedings have been against natural justice".
On the other hand, speaking in the House of Lords, Lord Selborne had said that, if the decision-maker under a statutory power had done anything "contrary to the essence of justice", then "[t]here would be no decision within the meaning of the statute" [17] . This suggested that a breach of the rules of natural justice would go to the statutory jurisdiction of the decision-maker, and so was a ground of interference within the doctrine of jurisdictional error.
[28] In his work, published in 1887, Informations (Criminal and Quo Warranto), Mandamus and Prohibition, Shortt, when discussing prohibition, referred to the well-developed practice of the King's Bench in issuing prohibition to the Court of Admiralty and to the ecclesiastical courts. This activity had a long history. Sir John Holt CJ granted prohibition [18] where a Consistory Court had refused to the prosecutor, a coroner, a copy of the libel instituting proceedings against him for supposed profanation in a cemetery in digging a corpse for a view. A statute of 1414 [19] , with the expressed object of relieving the need to approach the Royal Courts for prohibition, obliged the ecclesiastical courts to see that the libel was "granted and delivered to the Party without any Difficulty" [20] . Holt CJ determined that the prohibition would issue [21] "only quousque, which is ipso facto discharged by granting a copy of the libel".
[29] Much later, it was suggested in this Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd that [22] :
"the tenor of the writ might perhaps be moulded to meet the situation and the board and its delegate prohibited quousque, eg until they were satisfied lawfully or until they abandoned the unlawful course or criterion: see per Willes J in Mayor of London v Cox [23] , and in White v Steele [24] ".
[30] As the decision of Holt CJ indicates, prohibition lay against the ecclesiastical and admiralty courts where there had been what now would be identified as a denial of procedural fairness. More broadly, prohibition issued where those courts, acting by the rules of the civil law, had decided matters of common law arising incidentally before them in a manner different from that in which the common law courts would have decided them [25] . This was so although what appeared to be involved was error within jurisdiction. Shortt added [26] :
"In such cases, though the matter of the suit before the Court Christian or the Admiralty Court were clearly within the jurisdiction of such Court, and though the erroneous judgment might possibly have been corrected on appeal, prohibitions have from very early times been granted."
The learned author took this as an instance of the cases referred to by Eyre LCJ in delivering the opinion of the judges to the House of Lords in Home v Earl Camden [27] . His Lordship said [28] :
"It undoubtedly belongs to the king's temporal courts to restrain courts of peculiar jurisdiction from exceeding the bounds prescribed to them; and by far the greater part of the instances in our books, in which prohibitions have issued, are cases of plain excess of jurisdiction. But some of the instances go beyond an excess of jurisdiction, and seem rather to fall under the head of wrong and injustice done to the party, by refusing him, in the course of a proceeding strictly within the jurisdiction, some benefit or advantage to which the common or statute law intitled him, perhaps in opposition to the civil or canon law, by which the general proceedings of those courts are regulated."
[31] The Lord Chief Justice was speaking in a litigation respecting the Prize Court. He spoke of the previous struggle for jurisdiction between the ecclesiastical and the temporal courts [29] . Even after the introduction of the Judicature system a century later, in Mackonochie v Lord Penzance [30] , the Queen's Bench Division issued prohibition against Lord Penzance in his capacity of Dean of the Arches. Further, as late as 1872 prohibition still lay to the Court of Admiralty [31] . This was a sequel to "the judicial strife" carried on in the sixteenth and seventeenth centuries between the Courts of King's Bench and the admiralty courts in the course of which "matters raged so high that a war was declared between the two courts, and prohibitions were hurled from Westminister [sic] Hall without much order" [32] .
[32] In Mackonochie, Earl Cairns approved [33] the judgment of Thesiger LJ in the Court of Appeal, in which a distinction was drawn between the implied power of a court or tribunal to regulate matters of its practice and procedure (in respect of which generally an appeal, not prohibition, was the remedy) and a statutory provision relating to these matters (which might go to jurisdiction). Thesiger LJ did contemplate prohibition in respect of procedural irregularities in the first category where there had been violation of "some fundamental principle of justice" [34] , but unlike Lord Selborne in Spackman, did not link this with the statutory implication of a condition requiring observance of the rules of natural justice.
[33] There were many nineteenth century authorities in which procedural irregularities, within jurisdictional limits, were held not to attract prohibition [35] . They involved such unsuccessful complaints as unreasonable refusal to adjourn so that a defendant might obtain legal assistance [36] ; trying a defendant at an unreasonably short time after laying of the information [37] ; and refusing to hear a party's evidence [38] . Further, in Hooper v Hill [39] , Davey LJ referred to the line to be drawn, albeit with difficulty, "between what is excess of jurisdiction and what is at most an indiscretion". His Lordship observed that what appeared to be the practice in the Birmingham County Court of publishing a list of cases to be tried on a day in vacation when it was known that the judge would not be there was "not at first sight one to be commended", but continued that he could not say "that the practice in itself involves any excess of jurisdiction" [40] .
[34] The position in England at the time of the commencement of the Constitution was that (i) there was some support for the proposition that prohibition might lie in respect of at least some sufficiently serious denials of procedural fairness but that (ii) it was not clear whether this was to be understood as included within notions of jurisdictional error or was placed outside it as an independent head of complaint. The law was in a state of development. The doctrinal basis for the constitutional writs provided for in s75(v) should be seen as accommodating that subsequent development when it is consistent with the text and structure of the Constitution as a whole.
[35] The position in the colonies before the commencement of the Constitution also supports such an approach. In New South Wales, the establishment by statute of Courts of Petty Sessions and Small Debts Courts gave rise to a series of cases in which prohibition was granted in respect of procedural irregularities said to amount to a denial of natural justice. In Ex parte Lucas [41] , a more limited view of what amounted to a denial of natural justice was taken by Cullen CJ after a review of these cases. The passage in the judgment of Eyre LCJ in Home v Earl Camden, set out above, was repeated by his Honour [42] . He also referred to the discussion by Maule J in Ex parte Story [43] of cases where prohibition had gone where an ecclesiastical court had been proceeding against a person "who has never been called into it at all", this being "proceeding in a manner that is contrary to natural justice". Cullen CJ approved [44] a passage in the judgment of Owen J in Ex parte Fealey [45] where that judge had observed that the erroneousness or injustice in the judgment of an inferior court did not make it contrary to natural justice; Owen J had continued [46] :
"A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind. That conduct is said to be contrary to natural justice, and is a ground for the interference of this Court".
The New South Wales decisions, unlike those in England concerned with the ecclesiastical and admiralty courts, which owed their existence to "common law" in a broad sense of that term [47] , were concerned with inferior courts and tribunals owing their existence purely to statute.
[36] The course of development in the case law since federation shows that there was force in the statement made in 1931, but with reference to the nineteenth century cases, as follows [48] :
"Some principles early became so universally observed, so characteristic of all curial methods, that they became implied conditions of regularity in all judicial proceedings. [49] The ordinary right of tribunals to regulate their own practice does not extend to abrogation of these principles, which only statute can make inapplicable. Disregard of them will always be error, whatever the circumstances and whatever the cursus curiae." (footnote partially omitted)
[37] In Fairmount Investments Ltd v Secretary of State for the Environment [50] , Lord Russell of Killowen (with whose speech Lord Diplock, Lord Simon of Glaisdale and Lord Edmund-Davies agreed) had to consider a statute empowering the English High Court to quash a compulsory purchase order if satisfied that the order was not within the statutory power or that the interests of the applicant had been substantially prejudiced by non-compliance with its requirements. His Lordship said [51] :
"There was a certain amount of discussion before your Lordships on the significance and applicability of the phrase 'may quash' and on the difference between the phrase 'not within the powers of this Act' and 'the interests of the applicant have been substantially prejudiced by any requirement of this Act not having been complied with'. In my view the instant appeal does not require discussion of these points: for I am satisfied that if the true conclusion is that the course which events followed resulted in that degree of unfairness to Fairmount that is commonly referred to as a departure from the principles of natural justice it may equally be said that the order is not within the powers of the Act and that a requirement of the Act has not been complied with. For it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles."
This involved (as Lord Diplock later indicated in Attorney-General v Ryan [52] ) acceptance of an approach taken long before by Lord Selborne in Spackman [53] , and was repeated in the leading English texts [54] .
[38] On various occasions it has been assumed that prohibition under s75(v) issues in respect of failure to observe the rules of natural justice [55] . In Abebe v The Commonwealth [56] , Gaudron J left open the question whether procedural fairness is to be seen as a common law duty or an implication from statute. Her Honour referred to the support for the first view by Mason J in Kioa v West [57] and that for the second view by Brennan J in the same case [58] .
[39] In Kioa, Brennan J described the rule as an implication to be drawn from legislation conferring decision-making authority, the implication being that "observance of the principles of natural justice conditions the exercise of [a statutory power to affect rights and interests]" [59] . His Honour developed these views in later cases [60] and with some support by Deane J in Haoucher v Minister for Immigration and Ethnic Affairs [61] . In Annetts v McCann, Brennan J said [62] :
"[T]he common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power. This is the foundation and scope of the principles of natural justice. The common law confers no jurisdiction to review an exercise of power by a repository when the power has been exercised or is to be exercised in conformity with the statute which creates and confers the power. ...
When a writ of prohibition or an injunction is sought to restrain the exercise of a power, the applicant must show that there is a failure to satisfy some condition governing the proposed exercise of the power; for example, that the repository of the power has failed to accord natural justice to a person whose interests are liable to be affected adversely by the proposed exercise."
[40] The reasoning of Brennan J in these judgments is consistent with the proposition respecting "Wednesbury unreasonableness" - which Gummow J adopted in Minister for Immigration and Multicultural Affairs v Eshetu [63] - stated by Brennan CJ in Kruger v The Commonwealth [64] . This is that, "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised". This reasoning should be accepted with respect to the remedy of prohibition provided for in s75(v) of the Constitution. It represents the development of legal thought which began before federation and accommodates s75(v) to that development.
[41] It follows that, if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s75(v) of the Constitution.
[42] Different considerations arise where the Commonwealth officer is a member of a federal court. There, procedural fairness is a concomitant of the vesting of the judicial power of the Commonwealth in that federal court and s75(v) operates to maintain s71 of the Constitution. Again, where the officer of the Commonwealth executes an executive power, not a power conferred by statute, a question will arise whether that element of the executive power of the Commonwealth found in Ch II of the Constitution includes a requirement of procedural fairness [65] . It is unnecessary to pursue that question further in the present case, but if that requirement is included then prohibition will lie to enforce observance of the Constitution itself. Nor does any question arise here of attempted abrogation by statute of any requirement of procedural fairness. Rather, s476(2)(a), in limiting the grounds which may be taken in the Federal Court, assumes the existence of the requirement in respect of decisions under the Act which include those of the Tribunal [66] .
Prohibition and discretion
[43] In the nineteenth century English decisions, there was much debate as to whether, although it was not a writ of course, prohibition was to be granted as a matter of right and was not to be denied on discretionary grounds [67] . Debate turned partly on the question of significance to be attached to the identity and interest of the prosecutor and partly on the doctrinal basis founding the issue of the writ. In Chambers v Green [68] , Sir George Jessel MR, drawing support from Willes J (delivering for himself, Blackburn J, Pigott B, Shee J and Smith J answers to questions put by the House of Lords in Mayor, & c, of London v Cox [69] ), distinguished the position of a prosecutor who is a stranger to the proceeding of the inferior court or tribunal. Where the prosecutor was a stranger, there was a discretion to refuse prohibition, whilst, as Willes J had also emphasised [70] , where the prosecutor was a party to the proceeding in the inferior court or tribunal, there was no discretion, and the view of earlier judges including Holt CJ that a discretion existed was incorrect. The rationale given by Jessel MR for the distinction was the unfairness involved where neither party disputed the jurisdiction but a third party did so. Awareness of the distinction drawn in the English decisions appears to underline the dictum in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [71] :
"[I]t must be borne in mind that, subject to certain limitations not here material, while prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority."
[44] By the time of federation in this country, the view was taken by the New York Court of Appeals that [72] :
"[t]he writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity, and not for grievances which may be redressed by ordinary proceedings at law or in equity, or by appeal, and it is not demandable as matter of right, but of sound judicial discretion, to be granted or withheld, according to the circumstances of each particular case".
The contrary view in England that, even where the prosecutor was a stranger, there was no discretion, was attributed by the New York Court of Appeals to the vigour with which the Court of King's Bench had carried on its struggle with the admiralty courts [73] . Be that as it may, this view, one contrary to that of Jessel MR and Willes J, held sway well into the nineteenth century in the Court of Common Pleas and had Brett J as its particular champion. In Worthington v Jeffries [74] , his Lordship declared that, in all cases, the writ issued upon the same ground. This was [75] :
"not whether the individual suitor has or has not suffered damage, but is, whether the royal prerogative has been encroached upon by reason of the prescribed order of administration of justice having been disobeyed. If this were not so, it seems difficult to understand why a stranger may interfere at all."
Later, in Ellis v Fleming [76] , Brett J discountenanced the judgment of Jessel MR in Chambers v Green [77] . Moreover, in Mayor, & c, of London v Cox [78] , Willes J himself had stated [79] :
"All lawful jurisdiction is derived from and must be traced to the royal authority. Any exercise, however fitting it may appear, of jurisdiction not so authorized, is an usurpation of the prerogative, and a resort to force unwarranted by law."
Plainly that mode of reasoning was inapplicable in the United States, given the nature of government adopted in that country and the conclusion, expressed before the adoption of the Australian Constitution, that, in the United States, the writs had necessarily been stripped of their prerogative features [80] .
[45] The nature and structure of the Constitution indicates that the same must be true of the remedies of "prohibition" and "Mandamus" identified in s75(v). The legislative power of the Commonwealth is "vested" in the Parliament consisting of the Crown, the Senate and the House of Representatives (s1). The executive power of the Commonwealth is "vested" in the Crown and is exercisable by the Governor-General as the Crown's representative (s61) [81] . On the other hand, the judicial power of the Commonwealth is "vested" by s71 in this Court and in such other federal courts as the Parliament creates and in such other courts as the Parliament invests with federal jurisdiction. There is no vesting in the Crown of any element of the judicial power of the Commonwealth. Indeed, an important exercise of the judicial power of the Commonwealth is its utility in controlling actions by the executive branch of government beyond the exercise of the executive power vested by s61. Thus, to adapt to this country the statement by Willes J in Mayor, & c, of London v Cox [82] , all lawful jurisdiction is derived from and must be traced to Ch III of the Constitution. The remedies specified in s75(v) are directed to observance by officers of the Commonwealth of the Constitution and the laws in force thereunder.
[46] Nevertheless, in The Tramways Case [No 1] [83] , Griffith CJ set out a passage from the judgment of Brett J in Worthington v Jeffries [84] in which his Lordship had founded the issue of prohibition as of right upon an encroachment upon the law of prerogative. The context in which Griffith CJ did so is important. One question in The Tramways Case [No 1] was whether jurisdiction of this Court to issue prohibition to a tribunal comprising Commonwealth officers which acted in excess of jurisdiction was in its nature appellate or (as the Court held) original jurisdiction. If the former, then it would have been subject to the power of the Parliament in s73 of the Constitution to prescribe exceptions and regulations. Worthington v Jeffries was referred to in support of the unexceptionable proposition that the jurisdiction of the superior courts in England to grant a common law writ of prohibition was original and not appellate jurisdiction.
[47] Later, in R v Federal Court of Australia; Ex parte WA National Football League [85] , Barwick CJ also referred to the same passage in the judgment of Brett J in Worthington v Jeffries. Barwick CJ, as indicated earlier in these reasons, treated what his Lordship had said as a "presently relevant" aspect of the law appertaining to the grant of prohibition by the King's Bench which was imported into the jurisdiction of this Court by the use of the word "prohibition" in s75(v). In our view, that starting point should not be accepted. However, in WA National Football League, Barwick CJ also advanced the proposition that the grant of prohibition under s75(v) is discretionary if sought by a stranger or if the jurisdiction does not appear on the face of the proceedings but semble that otherwise the writ is as of right. In his discussion of this point, his Honour quoted [86] with approval the judgment of Willes J in Mayor, & c, of London v Cox [87] .
[48] To treat what Willes J said as applicable to s75(v) is not to challenge the line of authority which indicates, in some circumstances, that a stranger, without a relevant legal interest, may have standing as a prosecutor in a matter in which prohibition is sought under s75(v) [88] . The point in issue here concerns the existence of a discretion in a case such as the present (where the prosecutor is not a stranger) to decline the issue of prohibition.
[49] Where the prosecutor is a stranger, the existence of a discretion should be regarded as settled by what was said in Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association [89] by Mason, Brennan and Dawson JJ, who comprised the Court in that case. There, the prosecutor was a stranger to any demarcation dispute between the relevant union parties in an application for variation of an award by the Conciliation and Arbitration Commission. In those circumstances their Honours held that it would be "inappropriate" to grant prohibition. They prefaced that conclusion by saying [90] :
"At common law there has been some controversy as to the existence and extent of the Court's discretion to refuse prohibition when the writ is sought by a stranger to the proceedings before the inferior court, but the resolution of the controversy has not been thought to determine the existence of this Court's discretion in exercising its jurisdiction under s75(v) to grant or refuse prohibition to the Commission. The tendency of the Court has been to assume the existence of a discretion to refuse the remedy when sought by a stranger though a case in which it would have been right to refuse the remedy has not arisen hitherto".
There remains the class of case in which the applicant for prohibition is not a stranger in the relevant sense. Here, it should be observed that the proposition that in respect of activity in excess of jurisdiction prohibition goes as of right cannot be accepted at its face value. For example, it is well settled that a court may discharge an order nisi and refuse to proceed further with an examination of the merits where the prosecutor obtains the order nisi upon material which misled and deceived the court [91] .
[50] Particular considerations arise where the officers of the Commonwealth against whom prohibition is sought are members of a federal court. In R v Gray; Ex parte Marsh, Mason J said [92] :
"It has been said that, although prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority: Australian Stevedoring Industry Board [93] . However, recent judgments in this Court support the proposition that the court has a discretion to refuse prohibition where it is sought against a superior court at least when: (a) the prosecutor has a right of appeal; and (b) there is no constitutional question involved".
Further, prohibition may be refused by this Court where the administrative structure incorporates provision for an internal "appeal" and, whilst there was a denial of procedural fairness at the first stage, an appeal was taken and there was a full and fair hearing on that appeal. The judgment of Mason J in R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [94] is authority that, in such a case, prohibition to the first decision-maker may be refused on the footing that any denial of natural justice at that level has become irrelevant. For that conclusion, Mason J cited in support the decision of the Privy Council in Calvin v Carr [95] .
[51] The position respecting refusal of prohibition was expressed in more general terms by Gibbs CJ in R v Ross-Jones; Ex parte Green [96] . After referring to various authorities, including Australian Stevedoring Industry Board [97] (in which the expression "in excess of its authority" was used with reference to the activities of tribunals), Gibbs CJ said [98] :
"If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course."
[52] That statement should be accepted as the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s75(v) of the Constitution. The expression "want or excess of jurisdiction" in that passage includes, in the sense explained earlier in these reasons, the consequence of failure to observe the rules of natural justice in the exercise of statutory authority.
[53] The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s75(v) with respect to prohibition involves "two separate questions" [99] . The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. The denial of prohibition by reason of an adverse answer to the second question does not necessarily deny to the prosecutor the opportunity to vindicate any private law rights in appropriate proceedings. For example, damages or equitable relief may be sought for tortious injury to private or individual rights [100] . In such actions, the parties are likely to be different and, in any event, the doctrine of res judicata may not be applicable [101] .
[54] The text and structure of Ch III do not suggest that prohibition should occupy any special position among the constitutional remedies provided in s75(v). The other two remedies specified there are attended by discretion. This is "well settled" with respect to mandamus [102] . It is a remedy which does not go either as of right or as of course. The same certainly is true of the injunction where, as here, it is a public law remedy [103] . In Annetts v McCann [104] , Brennan J pointed out that a writ of prohibition or an injunction may be sought to restrain the exercise of a power where natural justice has not been accorded, this being "a failure to satisfy some condition governing the proposed exercise of the power". In other cases, upon analysis, an injunction with the same effect as prohibition quousque may be the appropriate remedy that is sought [105] .
[55] No doubt the discretion with respect to all remedies in s75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s73 of the Constitution [106] . The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corp v Development Assessment Commission. Her Honour said [107] :
"Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less." (footnote omitted)
[56] Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said [108] :
"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
[57] When dealing apparently with certiorari and declarations, Lord Denning MR in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry said [109] :
"He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing [110] . If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief [111] ."
The reference by the Master of the Rolls to the refusal of relief because the applicant in fact suffered no injustice requires further attention. There are authorities which suggest that, where the complaint is one of denial of procedural fairness, the nature of the alleged irregularity may be a matter going to discretion to deny a remedy on the footing that, in any event, no different result would have been reached [112] .
[58] It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, "[t]he court does not act in vain" [113] . For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse [114] . Or the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor [115] . Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it. In such a situation, the reasoning in Ainsworth v Criminal Justice Commission [116] , where the remedy refused was certiorari, indicates that prohibition will not lie [117] .
[59] However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s75(v).
[60] Cases said to turn upon "trivial" breaches are often better understood on other grounds. In particular, it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case. The point is developed in particular in the judgments of Deane J in Kioa v West [118] and Haoucher v Minister for Immigration and Ethnic Affairs [119] .
[61] In the present case, the Act laid down a particular framework for the particular conduct by the Tribunal of its review of the decision of the delegate of the Minister. The Tribunal was bound by para(a) of s425(1) to give the prosecutor an opportunity to appear before it to give evidence. The Tribunal was empowered to require the prosecutor to give evidence on oath or affirmation (s427(3)(c)) and he gave sworn testimony on two occasions. However, he had not been entitled to be represented by any other person (s427(6)). The cogency of the prosecutor's evidence was of greatest importance for the evaluation of his claims respecting a well-founded fear of persecution.
[62] The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making [120] . It is in this fashion that the complaints made by the prosecutor in the present case are appropriately evaluated. Before doing so, it is necessary to return briefly to the history of the matter.
The proceedings before the Tribunal and the Federal Court
[63] The jurisdiction of the Tribunal had been attracted in the first instance by an application made on 4 October 1996 to review the decision of a delegate of the Minister dated 2 October 1996 that the prosecutor did not meet a prescribed criterion for the grant of a protection visa. The decision of the delegate was conveyed in a document of 16 pages which contained detailed findings. The jurisdiction of the Federal Court was attracted by the filing by the prosecutor on 15 January 1997 of an application for an order of review under Pt8 of the Act of the first decision of the Tribunal. On the top of the first page of the application there appeared in the handwriting of the prosecutor the statement:
"Total 21 PAGES INCLUDING THIS PAGE
PAGES 1-5 COVER + 16 pages submission".
These 21 pages are included in the materials before the Court on this present application.
[64] On 18 December 1997, the Full Court of the Federal Court ("the first Full Court") allowed an appeal from orders of Beaumont J. His Honour had dismissed the application. The effect of the orders of the first Full Court was to allow the application for review, to set aside the first decision of the Tribunal, and to remit the matter to the Tribunal to be determined in accordance with law, with or without the hearing of fresh evidence as the second Tribunal should determine.
[65] Power to make such orders was given to the Federal Court by para(a) and para(b) of s481(1) of the Act. The authority of the Tribunal derived primarily from that section. The provisions thereof to which we have referred impliedly conferred upon the Tribunal at the second hearing the authority [121] to redetermine the application which the prosecutor had made on 4 October 1996, and to do so with or without the hearing of fresh evidence, and otherwise in accordance with the procedures set out in Div 3 (s420-s422), Div 4 (s423-s429) and Div 5 (s430-s431) of Pt7 of the Act.
[66] At the second Tribunal hearing on 20 March 1998, the prosecutor again gave sworn evidence. The Tribunal was differently constituted for the second hearing. A new file was opened and given the number N98/21291. The file at the first Tribunal hearing was number N96/12272. S418 of the Act provided for the Secretary to the Minister's Department to give to the Registrar of the Tribunal certain documents relevant to the review. There is no such statutory provision respecting the Federal Court file. However, appeal papers had been prepared for the first Full Court and an appeal book assembled. The index to that appeal book is in evidence on the present application. This shows that the application for review filed on 15 January 1997, and thus the written submissions of 16 pages, was reproduced. So also was an amended application filed on 3 March 1997, including an attachment of 16 pages.
[67] After the prosecutor had been sworn on 20 March 1998, the member constituting the Tribunal at the second hearing told the prosecutor that she had read everything in "all of those files", being identified in the sentence:
"I've got [your] Department of Immigration file and your old Refugee Tribunal file and your new Refugee Tribunal file plus all of the Federal Court papers."
At the second hearing, the prosecutor gave oral evidence concerning his association with his former colleague, Ali Tehrani. The Tribunal on 3 April 1998 affirmed the decision not to grant to the prosecutor a protection visa. The position respecting Ali Tehrani then assumed considerable importance on the consequent application for review to the Federal Court. This was heard by Branson J and, on 17 December 1998, her Honour affirmed the decision of the second Tribunal. On 3 June 1999, the Full Court ("the second Full Court") dismissed an appeal against her Honour's orders. The Full Court gave judgment after this Court's decision in Minister for Immigration and Multicultural Affairs v Eshetu [122] . The Full Court noted that the effect of the decision in Eshetu was that para(a) of s476(1) did not empower the Federal Court to review a decision of the Tribunal on the basis that it had failed to comply with procedures mandated by the Act. This was because that obligation to afford natural justice was not part of the statutory requirement in para(b) of s420(2) that the Tribunal, in reviewing a decision, "must act according to substantial justice".
[68] However, at the time the matter was before Branson J, it was accepted that it was open to the Federal Court to deal with matters of natural justice. Her Honour did so, with particular reference to the matter concerning Ali Tehrani. Branson J's findings appear in the following passage:
"The [prosecutor] gave evidence at the second [Tribunal] hearing that he and a former colleague of his, Ali Tehrani, had an agreement that if ... Mr Tehrani experienced any problems with the Komiteh, Mr Tehrani should try to save himself by disclosing all the information in his possession about the [prosecutor], as the [prosecutor] would be safely overseas. The [prosecutor] had not given this evidence either to the Department or at the [first Tribunal hearing]. However, he had made a written statement to this effect in a document dated 14 January 1997 which he apparently provided by facsimile transmission to the Federal Court following his appeal to this Court from the [first Tribunal decision]. The [prosecutor] also sent three further documents to the Federal Court. All four of the documents sent by the [ prosecutor ] to the Court were reproduced in the Appeal Book produced for the purpose of the hearing by the Full Court of the appeal against the decision of Beaumont J . There is nothing before me to suggest that documents provided to the Federal Court in this way would ordinarily be expected to come to the attention of the [second Tribunal]. There is nothing before me to suggest that these documents did come to the attention of the [second Tribunal]. Nor has the [prosecutor] placed any evidence before the Court on the issues of whether he was in fact misled by the assurance of the member who constituted the [second Tribunal] that she had read all of his statements and, assuming that he was misled, what he would have done had he been aware that certain documents prepared by him were not available to the [second Tribunal]. It seems likely that the [second Tribunal] was unaware that the [prosecutor] had first made a statement in January 1997 which asserted the existence of the agreement between him and Mr Tehrani. However, the reasons of the [second Tribunal] indicate that the [second Tribunal] placed importance on the fact that no evidence of such an agreement was given at [the hearing by the first Tribunal] (see the reasons of the [second Tribunal] at p10). Nothing in the documents sent by the [prosecutor] to the Federal Court altered this situation." (emphasis added)
The relevant passage in the reasons of the second Tribunal is as follows:
"The [prosecutor] claims that before he left Iran he told Ali that if ever he experiences any problems with the Komiteh he should try to save himself by disclosing all of the information he knows about the [prosecutor]. The [prosecutor] told him that he would be safe overseas and so it would be alright to pass this information on. The Tribunal notes that, prior to the second Tribunal hearing, the [ prosecutor ] had never raised the claim that he and Ali had an agreement that Ali would try to save himself by passing on information about the [ prosecutor ] if it became necessary ." (emphasis added)
[69] In a later passage in the reasons of the second Tribunal, the following appears:
"The [prosecutor] told the Tribunal about a real estate transaction in which his colleague Ali Tehrani had been involved after the [prosecutor's] departure for Australia which he claims led to Ali's arrest and execution. The [ prosecutor ] had never raised this claim prior to the second Tribunal hearing. He claims that the information was given to him by other real estate colleagues, although he did not claim this in prior submissions or hearings. The Tribunal finds that the [ prosecutor ] concocted this evidence and places no weight on it .
The [prosecutor] gave evidence that he felt that Ali Tehrani would have passed on information about the [prosecutor's] activities to the authorities. He claims that he and Ali had an 'agreement' that, if Ali were to be detained, he would tell the authorities about the [prosecutor's] past activities in order to save himself. The Tribunal does not accept this evidence. Prior to the second Tribunal hearing, the [ prosecutor ] had never claimed that he and Ali had any sort of agreement . This claim is purely self-serving.
...
The Tribunal finds that there is no connection between the [prosecutor] and the alleged execution of Ali Tehrani, nor any consequences which may flow to the [prosecutor]. However, even if the Tribunal accepts that Ali Tehrani did inform the authorities about the [prosecutor's] involvement in the sale of properties for the Shah and his associates, the Tribunal has already found ... that the [prosecutor] does not have a well-founded fear of persecution for reasons of this or any of his past activities. Consequently, the Tribunal finds that the [prosecutor] does not have a well-founded fear of persecution for reasons of his association with Ali Tehrani." (emphasis added)
The prosecutor's case
[70] The substance of the prosecutor's complaint is that (i) the references by the second Tribunal to the absence of prior claims by the prosecutor respecting the agreement with Ali Tehrani is factually wrong; (ii) this is because reference was made respecting this matter by the prosecutor in one or more of the documents sent by the prosecutor to the Federal Court and which were reproduced in the appeal book for use by the first Full Court; (iii) the prosecutor was diverted from setting matters straight at his hearing before the second Tribunal because he understood the opening statement by the second Tribunal, which we have set out above, as an assertion by the second Tribunal member that she had read those materials as part of the Federal Court materials; (iv) in particular, his evidence in this Court, which was unchallenged, is that he did not elaborate at the hearing before the second Tribunal on these materials because he believed the member had read them and taken them into account; (v) had the second Tribunal been apprised of the true situation respecting the content of the material and its chronology, the second Tribunal would have had to take it into account before making the adverse finding as to the prosecutor's credit, respecting recent invention; and (vi) further, the second Tribunal denied the prosecutor procedural fairness by not putting to him its concern with recent invention before making an adverse finding based upon it.
[71] The written submissions to this Court by the second respondent included the following:
"1.4 The Prosecutor made no mention to the [first] Tribunal of an agreement with Ali that Ali would incriminate the Prosecutor if Ali was caught in an effort to save his (Ali's) life (the agreement claim). This new claim appears to have first been made in material dated 14 January 1997 submitted to the Federal Court after the [first] Tribunal decision and in support of the application for review. It was repeated thereafter in other material sent by facsimile to the Federal Court by the Prosecutor at different times.
1.5 The [second] Tribunal held an oral hearing on 20 March 1998. The member told the Prosecutor she had read all of the Federal Court papers. It was conceded before the Federal Court by the Second Respondent, and is again conceded, that the [second] Tribunal did not have before it the materials referred to in para1.4 above."
[72] There was discussion in the course of the oral submissions for the Minister of what was involved in this concession. It was not clear, for example, whether what was meant was that there had been some breakdown in established administrative procedures between the Federal Court and the second Tribunal. It was said by counsel for the second respondent that the concession meant that the Federal Court's file "is not ordinarily before the [Tribunal]" so that, in the present case, there has been "no particular glitch". That left for speculation what was meant by the member constituting the Tribunal at the second hearing when she asserted that she had read "all of the Federal Court papers". It was suggested by counsel, again without evidence, that this meant the member had before her the judgments delivered in the Federal Court and that she may or may not have had the application for review filed in the Federal Court on 15 January 1997. Then it was said that, in any event, the 16 page submission referred to on the front page of that application had not been before the second Tribunal.
[73] It may be that what was meant by the member in her opening remarks was that she had before her a copy of the appeal book prepared for the first Full Court and that it was this that she had read, not any unassembled court file from the Federal Court. The appeal book, as Branson J pointed out, reproduced all four of the documents now relied upon by the prosecutor as his communications to the Federal Court.
[74] Nevertheless, on this application in the original jurisdiction of the Court, it was for the parties to provide it with evidence in proper form to establish what in fact was the material before the Tribunal at the second hearing. Rather than doing so, the Minister relies upon the awkwardly expressed concession set out above. We therefore proceed on the footing that the four documents were not among material which constituted the record before the second Tribunal upon which it made its decision.
[75] However, when read as a whole and in context, the remarks made by the second Tribunal respecting recent invention are directed not to the intervening litigation in the Federal Court, but to a comparison between the record before the first Tribunal and the second Tribunal. After all, the proceedings in the Federal Court had been for administrative review upon a record constituted by that which had been before the first Tribunal. The relevant evidence was that tendered to the first Tribunal, in particular the prosecutor's oral evidence.
[76] It is here, nevertheless, that the real difficulty for the Minister's case arises. The assessment by the second Tribunal of the credit of the prosecutor was an important matter. There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial. The requirement of procedural fairness did not require the Tribunal when, pursuant to para(a) of s425(1), it gave the prosecutor the opportunity to appear before it to give evidence, to treat what transpired "as though it were a trial in a court of law" [123] .
[77] However, the practical content in the present case of the requirement for procedural fairness is to be determined bearing in mind the relationship between the hearings before the first Tribunal and the second Tribunal, the giving by the prosecutor of sworn evidence on both occasions, and the critical and obvious importance of any adverse finding as to his credit.
[78] The central issue to which the prosecutor's oral evidence was directed on both occasions was his claim to refugee status involving his well-founded fear of persecution for a Convention reason. The circumstances here were such as to make applicable what, in Mahon v Air New Zealand Ltd [124] , Lord Diplock identified as one of the rules of natural justice. His Lordship said [125] :
"The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result." (original emphasis)
[79] It is true that, in the present case, the second Tribunal said that, even if it had accepted that Ali Tehrani had informed the authorities about the involvement of the prosecutor in the sale of properties for the Shah and his associates, the second Tribunal already in its reasons had found that the prosecutor did not have a well-founded fear of persecution for reasons of any of his past activities. That finding had been expressed as follows:
"The Tribunal finds that because it is so clear that the [prosecutor] was driven by financial considerations and not by political motivations there is no possibility that his actions in facilitating the sale of properties owned by the Shah and his associates would be seen as political. The [prosecutor] has shown himself to be an opportunistic businessman who will do almost anything to earn large profits. There is no evidence before the Tribunal, apart from the [ prosecutor's ] own claims , to suggest that real estate agents, or any person, caught facilitating sales of property for the Shah or his associates for profit are imputed with a political opinion in Iran. The Tribunal finds, therefore that there is only a very remote chance that the [prosecutor] would be imputed with a political opinion in support of the Shah." (emphasis added)
[80] Thus, the second Tribunal's estimate of the cogency of the prosecutor's claim permeated its reasoning. The evidence before the first Tribunal was given on 4 December 1996. The 16 page statement which accompanied the application for an order for review by the Federal Court was dated shortly thereafter, on 14 January 1997. It cannot be predicted that, had this been pointed out to the second Tribunal, it would inevitably have had a result which did not involve an adverse finding with respect to the prosecutor's credit. However, it can at least be said that this might have deterred the second Tribunal from concluding as it did. It is sufficient that "the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome" [126] .
[81] In John v Rees, Megarry J said in such a context as the present that [127] :
"[a]s everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change".
Delay
[82] The Minister urges the refusal of relief by reason of delay. The order of the second Full Court was made on 3 June 1999 and the application to this Court, which led to the making of the order nisi on 21 December 1999, was instituted on 21 October 1999. The decision of this Court in Eshetu had been delivered on 13 May 1999, while the second Full Court had the matter reserved for its consideration. The relevance of Eshetu for the prosecutor's arguments respecting natural justice has been indicated earlier in these reasons. The Full Court had given the prosecutor some encouragement, saying:
"[T]he Court has no jurisdiction to set aside the decision of the [second] Tribunal on the ground that it denied to the [prosecutor] natural justice. It may be noted that the submission was not without some substance. If the [prosecutor] wishes to pursue it, however, he must commence proceedings in the High Court."
[83] In all the circumstances, the delay which then ensued between June and October 1999 was not such as to merit the disqualification of the prosecutor from relief to which he otherwise would be entitled in this Court.
Conclusion
[84] At the hearing before the Full Court, the prosecutor did not press for an order absolute for prohibition directed to the first respondent, the Tribunal. The prosecutor should have orders absolute for prohibition against the second respondent, the Minister, to prevent action by him on the decision of the second Tribunal. In aid of that prohibition, the prosecutor should have certiorari to quash the decision of the second Tribunal. To that end, an extension of time within which to apply for certiorari should be granted. That leaves standing the undetermined application to the Tribunal of 4 October 1996. In respect of that application, there should be an order absolute for mandamus to the Tribunal requiring consideration and determination of that application according to law. The Minister should pay the costs of the prosecutor, both in respect of the order nisi and the hearing before the Full Court.