Re Refugee Review Tribunal; Ex Parte Aala

[2000] HCA 57

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(Decision by: Callinan J)

Re Refugee Review Tribunal; Ex Parte Aala

Court:

Judges: Gleeson CJ
Gaudron J
Mchugh J
Gummow J
Kirby 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

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Decision by:
Callinan J

[173] The issue in this case is whether this Court should grant prerogative relief to the prosecutor, by reason of his reliance upon an inadvertently made, erroneous statement by a Tribunal, at the inception of a hearing, that the Tribunal had read some relevant materials which in fact the Tribunal did not have and had not seen.

The Facts

[174] A Refugee Review Tribunal ("the first Tribunal") which received his application for a protection visa summarized the prosecutor's evidence to the Tribunal in this way. The prosecutor was born on 16 March 1942 in Iran. Between 1969 and 1978 he studied in London, Munich and Paris. He returned to Iran in 1973. He claimed that he had worked for the Savak (the secret police of the Shah of Iran) for six months. Subsequently he commenced a real estate business in that country. The Shah was deposed in February 1979. A high ranking military officer who was a cousin of the prosecutor's father and a member of the Shah's cabinet was executed by the new regime.

[175] The prosecutor was thereafter involved in the illegal sale of property owned by the Shah and some of his supporters.

[176] In about 1981 or 1982 he made substantial donations to an underground counter-revolutionary organisation, the Mujahideen-e-Khalq and helped to spread the views that it propounded.

[177] Members of the Komiteh, an enforcement organ of the new regime, visited the prosecutor's premises on three occasions between 1990 and his departure from Iran, in search, seemingly, of documents that might disclose his involvement in the sale of properties of the Shah and his followers. After the first visit the prosecutor concealed relevant documents in a safe place. Following the second visit the Komiteh questioned him at the Komiteh station.

[178] The prosecutor told the Tribunal that he had worked in cooperation with a school friend, Ali Tehrani, in selling property belonging to the Shah and his supporters. He described this man as his best friend although they were in competition as real estate agents. He said that they frequently pooled their resources to conduct their businesses and that they both became concerned when the Komiteh began to display interest in them in late 1990. His evidence was that they discussed leaving Iran. He told his friend that he too should leave the country.

[179] The prosecutor said that he contacted his sister in about 1993 and that she told him that the Komiteh was looking for him. He said that his sister informed him that she had been unable to find Ali Tehrani or make any contact with him. The prosecutor said that he had learned that this man had been arrested for selling confiscated Royalist properties and had been executed by the Iranian authorities. The prosecutor contended that he believes that the Komiteh would have found out about his involvement in the sales from questioning his friend.

[180] In response to a comment by the first Tribunal, to the prosecutor, that the Tribunal did not think any of the evidence pointed to a conclusion that the applicant's friend would have given his name to the Komiteh, or disclosed information about him, the prosecutor responded that he was sure his friend would have given information to the Komiteh about him as a means of trying to save himself: that his friend would have done so because he would have thought the prosecutor to be safe having fled the country. Accordingly Ali Tehrani would have been able to provide such information in order to protect himself.

[181] It was common ground before the Tribunal that supporters of the Mujahideen-e-Khalq and the Shah when apprehended were imprisoned, and often tortured and executed.

[182] No evidence was presented to the first Tribunal of any explicit agreement between the prosecutor and Ali Tehrani as to the latter's freedom to disclose the prosecutor's activities before he left Iran, to save his own skin, if he were apprehended by the Komiteh. The prosecutor accepted that he would not have been given a passport to leave Iran in 1991 if he had been suspected of any illegal, covert activities.

[183] The first Tribunal was not satisfied that there was a real chance that the authorities would have learned of any of the prosecutor's activities that might, from their perspective, justify persecuting the prosecutor, from an interrogation of his friend in 1992 or 1993. The Tribunal concluded that the prosecutor did not have a well-founded fear of persecution and was not therefore entitled to a Protection Visa.

[184] There are some further factual matters to which reference is required. On 15 September 1991 the prosecutor married Mary Razi, an Australian citizen of Afghan ethnic origin. An Islamic marriage celebration followed on 21 September 1991. On 9 October 1991 the prosecutor made application for a Class BC Subclass 100 (Spouse) Visa. On 13 August 1992 the prosecutor and his wife separated, and on 25 February 1993 a Spouse Visa was refused. On 7 March 1994 a decree nisi for divorce was pronounced.

[185] The prosecutor perpetrated a violent crime against his former wife. He was tried before Finlay J and a jury and convicted of malicious wounding, and sentenced to 34 months on 16 August 1995 ^[208] . His application for a Protection Visa was made on 20 August 1996 and on his release from Long Bay Jail he was immediately transferred to Villawood Immigration Detention Centre.

[186] The prosecutor then made an application to the Federal Court of Australia for an order of review of the decision of the Refugee Review Tribunal. The prosecutor provided to the Federal Court handwritten documents numbering some 19, 21 and 32 pages respectively, of allegation, repetition of facts stated to the first Tribunal, complaints about the decision of the first Tribunal, and some facts not previously stated. These documents were prepared without the benefit of any legal assistance. That material contained these statements:

"I advised Ali, try to get out of the country like me, before anything happened to you, but if something happen to you, try to disclosed information about me to the authorities, and protect yourself from any serious harm, because I will be out of the country and safe of any harm and I will not come back to Iran in future. It was accepted by Ali and he told me he will do it as I advise him."

[187] It is necessary to say something about these documents. They were not in the form of affidavits. They were unsworn. They contained some material that was objectionable in form and irrelevant to the issues. It is not clear whether the second respondent was content to treat them as evidentiary, or indeed whether any reference was made to them at all in the hearing of the prosecutor's application to the Federal Court which was heard by Beaumont J. These circumstances are unfortunate. It would have been better if the status of these documents had been in some way defined or it was made clear that they should be rejected. However, for reasons that will appear, this Court should regard the documents as documents which were relevantly before the Federal Court.

[188] Beaumont J, in short reasons which need no further reference, rejected the prosecutor's application.

[189] From this decision the prosecutor appealed to the Full Federal Court (Davies, Hill and Lehane JJ). The Court upheld the prosecutor's appeal, by, in effect, conducting a review of the facts and holding that the first Tribunal had misdirected itself as to the legal test to be applied in assessing the prosecutor's assertions. The decision of the Full Federal Court was given before the decisions of this Court in Abebe ^[209] and Eshetu ^[210] .

[190] The consequence of the decision of the Full Federal Court was another review before a differently constituted Refugee Review Tribunal ("the second Tribunal"). At the beginning of the hearing the Tribunal said this:

"Now, I've got both of your - I've got Department of Immigration file and your old Refugee Tribunal file and your new Refugee Tribunal file plus all of the Federal Court papers. So I've read everything that's in all of those files. There's quite a lot there but I've read it all and I'm going to have a number of questions for you and you'll have a lot of things that you'll want to tell me."

[191] Later the Tribunal added this:

"Okay, I mean I - as I've said I've read everything that's in your file, I've got all your other statements and I've got the tapes from your other hearing and your departmental interview so I - you know, if there's anything in there that you've missed today then you know I've got it?"

To which the prosecutor responded:

"I think it is that missed that there are plenty of information to take place but I'm afraid I don't know which one it is necessary I'd say, that's why I'm asking if there is any question you have, you can ask me I would like to answer anxiously."

The Tribunal then said:

"Well, I think I've asked you everything that I need to know".

[192] Until this point and save for what appeared in the documents sent to the Federal Court, the prosecutor had given no evidence of any agreement with Ali Tehrani that the latter was at liberty to inculpate him in proscribed activities in Iran.

[193] The second Tribunal also rejected the prosecutor's application for a Protection Visa. In doing so the Tribunal made some adverse findings against the prosecutor.

"The Tribunal notes that, prior to the second Tribunal hearing, the applicant 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 applicant if it became necessary."

[194] Later the Tribunal dealt with the prosecutor's relationship in more detail.

"The applicant told the Tribunal about a real estate transaction in which his colleague Ali Tehrani had been involved after the applicant's departure for Australia which he claims led to Ali's arrest and execution. The applicant 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 applicant concocted this evidence and places no weight on it.

The applicant gave evidence that he felt that Ali Tehrani would have passed on information about the applicant'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 applicant's past activities in order to save himself. The Tribunal does not accept this evidence. Prior to the second Tribunal hearing, the applicant had never claimed that he and Ali had any sort of agreement. This claim is purely self-serving."

[195] Once again, the prosecutor sought a review, in the Federal Court, of the Refugee Review Tribunal's rejection of his application to it.

[196] Branson J, who heard the application in the Federal Court, said this of the prosecutor's relationship with Ali Tehrani and the way in which the second Tribunal had dealt with the prosecutor's evidence concerning it.

"The applicant gave evidence at the second RRT 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 applicant, as the applicant would be safely overseas. The applicant had not given this evidence either to the Department or at the [Refugee Review Tribunal ('the RRT')] as initially constituted. ...

Not every failure by the RRT to afford an applicant an opportunity to be heard before drawing adverse inference from his or her failure to raise allegedly important evidence at an early stage will found a ground of review under s476(1)(a). It is significant in this case that nothing has been placed before this Court which suggests that had the applicant been given the opportunity which he claims was denied to him, he would have been in a position to provide to the RRT an explanation which would have been supportive of his credit. As Tamberlin J pointed out in Singh v Minister for Immigration and Multicultural Affairs ^[211] there is no universal obligation on a Tribunal member to disclose to an applicant its proposed line of reasoning and to seek the comments of the applicant. Nor is there an obligation on a Tribunal member to inform an applicant of every piece of evidence or every consideration or line of reasoning which the RRT might adopt in assessing his or her credibility. This was not a case where the RRT obtained information of which the applicant was unaware which tended to reflect adversely on the applicant's credibility (cf Kioa v West ^[212] ). No ground of review based upon any failure of the RRT to comply with procedures with which the Act required it to comply has, in my view, been made out."

[197] From this decision the prosecutor appealed to the Full Federal Court (Hill, Whitlam and Kiefel JJ). By the time that the Full Federal Court came to consider the appeal this Court had handed down its decision in Eshetu ^[213] . The Full Federal Court in accordance with that decision accepted that the Federal Court had no jurisdiction "to set aside the decision of the Tribunal on the ground that it denied to the Appellant natural justice" noting that the submission was not without some substance. The Full Federal Court also held that no other grounds were made out and dismissed the appeal.

[198] The prosecutor's next step was to seek relief in this Court by way of prerogative writs under s75(v) ^[214] of the Constitution. On 21 December 1999 McHugh J made orders nisi requiring the respondents to show cause:

"1.

WHY a writ of prohibition should not be issued out of this Court directed to the first and second respondents prohibiting them from proceeding further with matter No 98/21291 in the Refugee Review Tribunal and why a writ of certiorari should not be issued out of this Court directed to the respondents, removing into this Court, to be quashed the decision made by them on 3 April 1998 in the said matter.

2.

WHY a writ of certiorari should not be issued out of this Court quashing the decision of the Refugee Review Tribunal made on 3 April 1998.

3.

WHY a writ of mandamus should not be issued out of this Court directed to the Refugee Review Tribunal to grant a protection visa to the Prosecutor.

4.

ALTERNATIVELY WHY a writ of mandamus should not be issued out of this Court directed to the Refugee Review Tribunal to consider the application for a protection visa according to law.

5.

WHY a declaration should not be issued from this court declaring that the decision of the Refugee Review Tribunal made on 3 April 1998 is invalid.

6.

WHY the prosecutor should not be granted an extension of time to seek orders 1, 2, and 3 in this writ.

7.

AND WHY such further orders as the Court deems fit should not be made."

[199] The grounds for these orders were:

"1.

The said decision of the Refugee Review Tribunal on 3 April 1998 was beyond its jurisdiction.

2.

The decision of the Refugee Review Tribunal was made in breach of the rules of natural justice."

[200] The prosecutor's application was supported by an uncontradicted and otherwise unchallenged affidavit, in which he deposes that the statements made by the second Tribunal that I have set out misled him; that the Tribunal could not, on any view of its findings have read all of the material (the handwritten documents) that he had submitted to the Federal Court. Had he known this he would have made sure that the material, supporting his assertions in relation to Ali Tehrani, was brought to the attention of the second Tribunal who would then have had no proper basis for findings of dishonesty in relation to this matter.

[201] In essence, it is the prosecutor's case in this Court that the second Tribunal, as an officer of the Commonwealth, acted in breach of the rules of natural justice in informing the prosecutor that the Tribunal had, and had read all of the materials, relevantly the handwritten material submitted to the Federal Court when in fact the second Tribunal had not done so. It is not the prosecutor's case that the second Tribunal did this other than honestly. Indeed, the probability is that the Tribunal would only have received formal documents such as the application to the Federal Court, the Court's decisions and perhaps affidavits duly filed and read in that Court. But the prosecutor says that he was misled and deprived of the opportunity of bringing material prepared for the purpose of, and, drawing the agreement to the attention of the second Tribunal. Furthermore, because of the unqualified way in which the second Tribunal stated that "everything that's in all of those files" had been read, and the non-exclusion of the handwritten materials in the Federal Court, the prosecutor was entitled to take that view. Such a breach, the prosecutor contends entitled him to relief under s75(v) of the Constitution.

[202] An alternative submission was made that there had been a breach of s425 of the Migration Act 1958 (Cth), that the word "opportunity" as used in that section would be read as meaning a full and fair opportunity:

" Where review 'on the papers' is not available

425 (1)

Where s424 does not apply, the Tribunal:

(a)

must give the applicant an opportunity to appear before it to give evidence; and

(b)

may obtain such other evidence as it considers necessary.

(2)

Subject to para(1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review."

[203] The second respondent submits that there is no doubt that the prosecutor had referred to the arrest and execution of Ali Tehrani in extensive evidence given before the first Tribunal on 4 December 1996 and that he then could and should have referred to any agreement with Ali Tehrani:

"They told me ... Ali Tehrani has been faced persecution and he was executed by the Iranian authorities. I know why: because he was doing the illegal selling of the confiscation properties. So ... they took a lot of information from Ali from his business. And also my business, perhaps, because ... we were working together. So that's why - that's why I am sure the Iranian authorities have information about my past illegal activities of the selling ... and also my activity with ... and my passport at Savak. So that's why I am sure if I return to Iran I will face persecution. And they will take lot of information off me as they have taken from Ali Tehrani and then they will execute me."

It is also indisputable that the prosecutor's claims of an agreement were first made after the adverse finding by the first Tribunal. Whether the new story was formulated immediately after the first Tribunal's decision, or, at some later stage, as suggested by the finding of the second Tribunal hearing that he had "never raised this claim prior to the second Tribunal hearing" is of little, if any materiality in the circumstances of the prosecutor's having been misled.

[204] The second respondent relied upon what was said at first instance by Branson J with respect to the way in which the second Tribunal dealt with the alleged agreement:

"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 decision of the RRT. The applicant also sent three further documents to the Federal Court. All four of the documents sent by the applicant 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 RRT. There is nothing before me to suggest that these documents did come to the attention of the RRT. Nor has the applicant 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 RRT 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 RRT. It seems likely that the RRT was unaware that the applicant 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 RRT indicate that the RRT placed importance on the fact that no evidence of such an agreement was given at the first RRT hearing (see the reasons of the RRT at p10). Nothing in the documents sent by the applicant to the Federal Court altered this situation."

[205] With respect, her Honour's analysis understates the position. The second Tribunal did not merely place importance on the absence of evidence of an "agreement" at the first hearing, the second Tribunal said that the prosecutor had never made a claim of it prior to the second hearing of the Tribunal and used that misapprehension as a basis for the finding of a "concoction", with all the pejorative overtones that that word conveys.

[206] This is not a case in which a Tribunal has merely misapprehended a fact and therefore has only made an error of fact within jurisdiction. At the inception of the hearing the second Tribunal mistakenly, but nonetheless prejudicially to the prosecutor, caused him to believe that a state of affairs relating to the manner in which he might choose to conduct his case existed when in fact that state of affairs did not exist.

[207] I regard the matter of the alleged agreement and the question whether it had earlier been mentioned or not by the prosecutor, as material. The language in which the second Tribunal addressed this matter and the way in which it must have therefore coloured the Tribunal's mind in relation to the prosecutor's evidence on other matters, and the prosecutor's uncontradicted reliance on what the second Tribunal said make this so.

[208] Whilst the Tribunal might not have any obligation enforceable at law to give to an applicant an express warning of the possibility or likelihood of adverse findings against him or her, it is an altogether different matter for a Tribunal to misrepresent, however innocently, an important state of affairs bearing upon the way in which a person in the prosecutor's position might proceed to present his or her case. On the facts deposed to, I think it is not possible to say that what happened did not give rise to an expectation on the prosecutor's part that the second Tribunal had, in fact, read that the prosecutor had already alleged, if somewhat belatedly, the existence of the "agreement" before the hearing of the second Tribunal. This is not a case in which an expectation has to be constructed out of any special relationships between the parties, or any assumption of responsibility by one towards the other, or has to be inferred from any circumstances of those kinds. It is a case in which a party has expressly stated something to be so, and the other has deposed to reliance, without being contradicted, a position which may be contrasted with that which was discussed by McHugh J in Teoh ^[215] and which led his Honour to criticize the application of a doctrine of legitimate expectation there.

[209] The second Tribunal therefore made, in my opinion, a decision inconsistent with the expectation that the Tribunal had created in the mind of the prosecutor, an expectation that he might safely conduct his case on the basis that all of the documents which contained an account of the alleged "agreement" had been read by the Tribunal. This was a concrete legitimate expectation in the circumstances. The fact that the expectation may have been created inadvertently by the Tribunal does not affect the matter. Regard has to be had to its consequences and not to the absence of any culpability on the part of the Tribunal in creating it.

[210] The second respondent accepted that jurisdictional error, sufficient to support a grant of mandamus could, at the time of Federation, have been founded on a breach of the rules of natural justice. Whilst it is true that the Tribunal had purported to exercise its power of review, the real question is, whether in doing so, it made such an error in failing to afford natural justice, as to amount to an invalid exercise of the power ^[216] . In my opinion the error is of such a kind.

[211] In Stead v State Government Insurance Commission ^[217] this Court (Mason, Wilson, Brennan, Deane and Dawson JJ) had to consider whether a breach of the rules of natural justice required in the circumstances that a party be granted a fresh trial. The particular circumstances were that the trial judge said to counsel who was addressing on a relevant issue, among other things, "You needn't go on as to that" in consequence of which counsel discontinued addressing on the topic. When the judge came to give his decision he made findings to the contrary of the clear intimation he had made to counsel in discouragement of any further address on the topic. This Court had no doubt that a breach of natural justice requiring that there be a new trial had occurred. Their Honours' judgment although they were dealing with an appeal and not an application for prerogative relief, is relevant to the question of what type of conduct will involve a breach of the rules of natural justice sufficient to justify a grant of prerogative relief. They said ^[218] :

"The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board ^[219] , in these terms:

'There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.'

That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact ^[220] . However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial."

The existence of an agreement and the time of its disclosure were material matters in this case. What the second Tribunal said at the beginning of the hearing, and after it, regarding the prosecutor's failure to refer earlier to the agreement and the Tribunal's opinion of the prosecutor because of that failure, meant that the prosecutor had been denied an opportunity to make submissions beyond submissions going to credibility, and on an issue of fact, of some materiality. The issue of credibility, as to when the existence of the "agreement" was first raised was, in my opinion, inextricably tied up with ultimate, material issues of fact, as to whether such an agreement had been made, and if it had, its likely consequence for the prosecutor. I cannot say that a different result would not have been reached had the prosecutor not been misled by the second Tribunal.

[212] The second respondent submitted that the audi alteram partem principle was not applicable here because the prosecutor was accorded a hearing at which he presented his case in full, and that all the Tribunal did was to make a factual error in assessing his credibility. But it was precisely because he was misled that the prosecutor did not present his case in full, which included a prior reference to a material fact.

[213] In some respects this case is also similar to R v Muir; Ex parte Joyce ^[221] which was decided before the doctrine of legitimate expectation had evolved to the extent that it now has. In Muir the respondent Board had, by its actions, led the prosecutor to believe that certain measures might be adopted in relation to his application, which in fact it had no intention of adopting. In the circumstances the prosecutor was unable to present his case in full ^[222] . In a case of such a kind, of which this is an example, it is probably not even necessary to invoke and apply a principle of legitimate expectations. McHugh J was in dissent in Teoh, but his Honour's observations, regarding procedural fairness, are not, I think, affected by that. His Honour said ^[223] :

"I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it' ^[224] . If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?"

[214] The case may also be contrasted with Abebe ^[225] and Eshetu ^[226] . It is not one in which the Tribunal may have failed to record some factual findings in reaching its conclusions. And, the case is far removed from Abebe in which, even though the Tribunal was not bound to do so, it repeatedly stressed matters that might be of importance to the plaintiff in the determination of her entitlement to a visa ^[227] .

[215] I do not take the statements of Rich, Dixon and McTiernan JJ in Bott ^[228] as necessarily constituting a comprehensive and exclusive statement of the obligations of a Tribunal such as the Refugee Review Tribunal in current times ^[229] :

"In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal."

[216] But even if the principle is as narrow as that, it is possible and right to say here, that a misrepresentation as to the evidentiary material available to, and used by the Tribunal, is incompatible with a real performance of the Tribunal's duty. It was, and would in my opinion have been at the time of Federation such a breach of the rules of natural justice as to justify prerogative relief then, as now.

[217] I have already stated my reasons why I think the matter is a material one. The remaining question is whether in the exercise of the Court's discretion all or any prerogative relief should be refused. That the prosecutor has had a number of separate hearings and has arguably dallied in bringing his application to this Court are relevant matters. But on the other hand are the doubts, which the unsettled state of the law prior to Abebe and Eshetu may have engendered as to the proper construction of the Migration Act, and the consequences to the prosecutor of the refusal of a visa if his claims are correct. These latter matters I find compelling. They are equally compelling so far as the prosecutor's application for an extension of time to bring these proceedings is concerned which I would also grant. It is unnecessary for me to consider the prosecutor's alternative argument that he was not given an "opportunity", in the sense of a full and fair opportunity, under s425 of the Migration Act, to give evidence to the Tribunal.

[218] But there is still the question whether the prosecutor should have all the prerogative relief he seeks. The prosecutor's application is based upon s75(v) of the Constitution which makes no mention of certiorari. Whether, notwithstanding the absence of such a reference, certiorari should nonetheless go, when prohibition, mandamus or an injunction is sought pursuant to s75(v) because the Court is thereby seized of jurisdiction, or because certiorari is an alternative remedy, whatever other prerogative relief is sought, is discussed by Dawson J in R v Gray; Ex parte Marsh ^[230] in several passages in which his Honour reviewed some earlier decisions but did not find it necessary to decide whether certiorari was available there or not. Nor is it necessary for me to reach any concluded view on that question here. Although I would grant other relief, I would not grant certiorari, because the legislature in s476(2) ^[231] of the Migration Act has excluded review of a relevant decision of the Tribunal on the ground of a breach of the rules of natural justice, and, accordingly it would, in my opinion, be inappropriate to grant a remedy on the basis of such a ground so excluded, and which the Constitution does not compel this Court to grant.

[219] The relief which I would grant still has efficacy for the prosecutor. I would make absolute the first, fourth and sixth orders nisi (but not for certiorari) made by McHugh J and order that the second respondent pay the prosecutor's costs.