The parties' submissions
26 It was common ground that the process of assessing the requests was one that was anterior to any personal procedural decision by the Minister to consider the exercise of substantive power and did not constitute a decision of that kind. It was purely non-statutory. It followed that the jurisdiction of this Court was not ousted by ss 474(7) and 476A of the Migration Act and this Court's jurisdiction under s 39B of the Judiciary Act 1903 (Cth) had not been excluded.
27 The applicants submitted that the state of satisfaction in s 351(1) was one that needed to be formed reasonably. Reference was made to Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326 at [89], citing the judgment of Gummow and Hayne JJ in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [167]. I note that these cases did not involve s 351, or an equivalent power.
28 The applicants submitted that the statute itself, in s 351(7), contemplates requests being made for the exercise of power under s 351.
29 The applicants submitted that obligations of reasonableness attended the non-statutory processes structured by the Executive itself to give effect to the contemplated assessment of requests. By the guidelines, the applicants submitted, the Minister had laid out a process for the requests contemplated by the Migration Act to, in fact, be made of him. The guidelines foreshadowed the method of the request and also the information that should be provided. By identifying information that should be provided the guidelines were foreshadowing criteria to be applied. The information that was sought was information that was relevant to the standard that the Minister had decided to apply in assessing the request.
30 The applicants submitted that the guidelines, at least in part, constituted instructions from the Minister to the officers of the Department. This was quite different territory, the applicants submitted, from the cases where there was a statutory discretion being exercised and guidelines published to guide the exercise of that statutory discretion. In that context guidelines could not fetter a statutory discretion, but where there was no statutory discretion being exercised, the Executive itself structured the bounds of the power exercised in the particular circumstances. In this different context the guidelines could take on a different quality because the Court does not have to, in that sense, mediate the relationship between Parliament and the Executive - it was a purely executive non-statutory power and the boundaries of it could be identified by reference to what the Executive itself had done. The relevant kind of legal unreasonableness was that the Minister had set a structure but the decision itself stood outside that structure.
31 The applicants submitted that the availability of review did not depend on the source of the power but on the substance and the character of the power. The applicants adopted the characterisation of this exercise of power by officers of the Department in Plaintiff S10/2011 at [51] per French CJ and Kiefel J and at [93] per Gummow, Hayne, Crennan and Bell JJ, as outlined above.
32 Earlier in Plaintiff S10/2011, the plurality had said, at [69]:
A non-citizen who is in the position of the plaintiffs and seeks the engagement and favourable exercise of the dispensing powers under the federal statute with which these cases are concerned does so to obtain a measure of relaxation of what otherwise would be the operation upon non-citizens of the visa system; it is the requirements of that system which must be met to lift what otherwise are the prohibitions upon entry and continued presence in Australia. This is sufficient to satisfy the principles just discussed.
33 The applicants submitted that the context of that case was the obligations of procedural fairness, and implicit in the plurality's holding at [69] that the relevant mechanism was sufficient, prima facie, to attract those obligations was a holding that it was sufficient, at least prima facie, to attract judicial review. The applicants submitted that what they had to show in the present case was that legal unreasonableness, or review for a certain kind of legal unreasonableness, was an available ground on which that judicial review jurisdiction could operate.
34 The applicants submitted that it was important not to divorce the relevant non-statutory process, which was within the aspect of s 61 concerned with execution and maintenance of the laws of the Commonwealth, from the particular law being executed and maintained. The applicant submitted that the execution of that law, s 351, was one conditioned by reasonableness. The applicant also relied on the decision of Wilcox J in Thurgood v Director of Australian Legal Aid Office (1984) 56 ALR 565 for the proposition that there is no bright line distinction between the principles of reasonableness that apply in statutory and non-statutory contexts. Notwithstanding that in that case the application for legal aid and the claimed constructive failure to consider the application was taking place in a purely non-statutory context, Wilcox J identified the relevant principle by reference to the decision of the High Court in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 242-3, which was decided in a statutory context.
35 In the present case, the applicants submitted, the content of the reasonableness obligation was to be discerned both from the Constitution and from the common law. The contemplation within Ch II of organised control and systematic structuring of the exercise of power, the applicants submitted, was said to be consistent with fundamental common law conceptions of reasonableness. When the Executive fulfilled that contemplation and ordered for itself the exercise of power, it could by structuring its own discretions and powers itself give content to what legal reasonableness required. The applicants submitted that by structuring the power by reference to dealing with or assessing a request, reasonableness in the circumstances required the departmental employee to understand the nature of the request made.
36 The applicants submitted that the second respondent made final assessments or exercises of power and if he was not required to observe the standards of reasonableness that would reveal a significant gap in the accountability of the Executive.
37 The applicants referred, by way of analogy, to Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424; and R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 WLR 2697 at [50]; [54]-[55]; [61]-[62] and [65].
38 In Sandiford, the Supreme Court was considering the adoption by the government of a blanket policy not to pay for legal help for British nationals in foreign criminal proceedings, including death penalty cases. The Secretary of State's power to provide the assistance was not derived from statute. The Supreme Court held that the power was not governed by the principle against fettering, although other review grounds, including irrationality and unreasonableness, could apply.
39 At [50], Lord Carnwath and Lord Mance (with whom Lord Clarke and Lord Toulson agreed and with whom Lord Sumption relevantly agreed at [78]) referred to the judgment of the Court of Appeal in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 which had said that enforceable rights could arise in domestic law based on established government policy statements or practices, underpinned by the law of legitimate expectation and justiciable in accordance with the principles established in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at [81]ff. The Court of Appeal had held that, although the Foreign Office's discretion as to exercise of its prerogative powers in such a case was "a very wide one" and although "the court could not enter the forbidden areas, including decisions affecting foreign policy", there was "no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation" (at [106]). Neither party in the case before the Supreme Court sought to question that analysis.
40 At [65]-[66], these judges of the Supreme Court said:
As we have already made clear, this does not mean that the formulation or exercise of a prerogative power may not be susceptible to review on other grounds. In particular there is no reason why a prerogative refusal to fund foreign litigation should be immune from all judicial review. It does not raise any real issues of foreign policy. As we understand it, the Government's current blanket policy is motivated largely by domestic policy and funding considerations. In particular, as Abbasi [2003] UKHRR 76 made clear, there is no reason why action or inaction in the exercise of such a power should not be reviewable on the grounds of irrationality or breach of other judicial review principles.
"Irrationality" is a high threshold, but it may be easier than otherwise to surmount in a case involving an imminent risk of death by execution of a British citizen deprived of financial support abroad. The court's role is given added weight in a context where the right to life is at stake (see R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514). A keen scrutiny of the policy and its application must on any view be required in such circumstances. There may be scope in an appropriate case to test the legitimacy of the blanket policy that the Foreign Office currently advances, by reference to a broader framework of proportionality discussed in a non-Convention context in Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] 2 WLR 808. Issues of consistency may also arise when the blanket policy is compared with the strong and apparently flexible approach to the exercise of "appropriate influence" advocated by the FCO's published strategy for abolition of the death penalty. However, for reasons which will become apparent, these questions are not critical to the outcome of this particular appeal.
41 The applicants submitted that the second respondent's treatment of the request for ministerial intervention revealed legal unreasonableness. That legal unreasonableness was identified in two ways by the applicants.
42 The first way in which legal unreasonableness was put was in relation to the fourth applicant, Ms Najat Jabbour. It was contended that the second respondent did not consider her ability to access disability services and did not assess the claims regarding lack of access to disability services in Lebanon.
43 The applicants drew attention to what they described as an important finding by the Commonwealth's Medical Officer in relation to Ms Najat Jabbour, which was that "[s]he currently does not require medical intervention, however, may require non-medical services to assist with day to day living."
44 The applicants submitted that nowhere in the record of the second respondent's reasons was there an appreciation of the lack of relevant non-medical services in Lebanon which was a material and important part of the request. The applicants asked the Court to make the finding that if that aspect of the request had been properly understood then it would have been dealt with in this minute and that the failure to deal with it in the minute gave rise to an inference that it had not been properly appreciated or understood. That failure was unreasonable because the executive, having chosen to deal with these matters by receiving requests and applying guidelines to them, had bound itself to a standard of reasonableness that required it to understand the request that was made in all material particulars.
45 For this primary ground, the applicants submitted that they did not need to contend that the particular content of the guidelines was binding, but it was enough for them to rely on the fact that there were guidelines, having some content directed to an assessment of requests made.
46 The second way in which legal unreasonableness was put was that there was a new matter not previously provided or considered, presenting unique or exceptional circumstances. The applicants accepted that for this ground to succeed they had to accept that the content of the guidelines was, in effect, binding.
47 The applicants submitted that no reasonable decision-maker could have reached this decision, that is, would have failed to refer the request to the Minister.
48 First, the absence of the parents from the request meant that any lingering issue about the stolen visa labels given to the family could not reasonably have borne on the Minister's consideration of the request - the applicants were the children who had all been minors at the time. This was a significant difference in the second request which compelled a finding that there had been a significant change in circumstances raising new issues that would fall within the unique or exceptional circumstances described in the Guidelines.
49 Second, the fourth applicant's, Ms Najat Jabbour's, circumstances raised a significant change in circumstances which change in circumstances unquestionably fell within the compassionate circumstances as identified in the guidelines as unique or exceptional circumstances.
50 The Minister submitted that Plaintiff S10/2011 and Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370; 158 FCR 510 constituted a bar to the applicants' success.
51 As to Plaintiff S10/2011, the Minister submitted that the complaint in that case included that the officer failed to address the material and claim before him. Reference was made to the judgment of Gummow, Hayne, Crennan and Bell JJ at [95], noting the submission that the content of the obligation to afford procedural fairness included a prohibition upon failure to consider clearly articulated claims supported by evidence. The High Court, the Minister submitted, should be taken to have rejected that proposition. The Minister accepted that in Plaintiff S10/2011 the contention was put under the label of procedural fairness but in substance that included the claim presently being advanced. Thus it followed from Plaintiff S10/2011, adopting the language of the plurality judgment at [51], that there was nothing about the character of the guideline processes as an exercise of the executive power of the Commonwealth or otherwise that attracted to them a requirement to act without legal unreasonableness.
52 The Minister also submitted that the only source of an implied requirement of legal reasonableness was statute. Further, even if such a requirement could be found, without statutory scope and purpose there could be no sufficient content given to a legal reasonableness obligation. Also, the Minister submitted, because the ultimate statutory power was referable to considerations of public interest the actions of the officers of the Department were not susceptible to judicial review.
53 The Minister submitted that if exercises of non-statutory power were amenable to judicial review, it was nevertheless necessary to consider the nature and subject matter of the relevant power to determine the extent to which the judicial review grounds were available. In the absence of a footing in statute, there were significant difficulties in the way that the claim for judicial review was sought to be made in the present case. The nature of the power here in issue was inconsistent with a doctrine of reasonableness applying to non-statutory executive power: referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.
54 The Minister submitted that what was involved here was a power that lacked some or all of the characteristics of statutory power by which one normally engaged in this sort of review. Therefore, one did not know things like scope, purpose and subject matter which may be very broad. Extreme caution should be exercised when faced with this sort of ground of review.
55 The Minister submitted that the Supreme Court in Sandiford, particularly at [66], proceeded by reference to doctrines that were entirely foreign to an Australian legal context. The Minister submitted that a legal unreasonableness analysis in a case such as the present was impossible to conceive of unless one derived those standards from elsewhere, as had been done in the English authorities.
56 The Minister also submitted that the applicants, even if correct in their contentions regarding the obligations of legal reasonableness, would fail on the facts. The material showed that in Lebanon there was widespread reliance on private health facilities, as public health facilities were weak and concentrated in urban centres. The material showed that a similar position applied to education, so that it was primarily private educational facilities by which people got their education.
57 The Minister submitted that the material did not show that the services that Dr Kwok referred to were not available at all in Lebanon. Although Lebanon had made very little provision for social welfare, social services were delivered by non-governmental organisations.
58 The second respondent in his file note dated 23 March 2018 had compendiously discussed both Dr Kwok's report and what was put in the submission. It was said in the file note that the fourth applicant, Ms Najat Jabbour, would face "enormous challenges" in settling back into Lebanon because of her learning disability. Fairly read, the enormous challenges referred to the various matters identified in the submission, which the second respondent should be assumed to have read. That included Dr Kwok's opinion regarding resettlement, but also the difficulties identified by reference to the statistics of being a person with a disability in Lebanon.
59 The Minister submitted what was said in the next paragraph of the minute was correct. There was nothing to suggest that the second respondent misunderstood the basis on which the claim was being put. In any event, the applicant's own material, which was before the second respondent, indicated that such services were available, albeit that they were provided by the private sector.
60 There was nothing to ground any sort of claim of legal unreasonableness, even if that ground was available: what was said was well within the area of decisional freedom. It was open to the second respondent to assess the difficulty in obtaining services was not a difference as to a matter of substance or was not going to lead to serious ongoing irreversible harm.
61 The second respondent could readily take the view that the exclusion of the applicants' parents did not constitute a significant change, referring again to section 11.2 of the guidelines, and, perhaps more generally, could not give any tenable basis for asserting that the decision was Wednesbury unreasonable. The second respondent referred to the submission that the present applicants were too young to understand the visa process or to act independently from their parents at the time they and their parents obtained fraudulent partner visas.
62 The Minister also submitted that the departmental minute was not a formal statement of reasons.
63 In supplementary written submissions filed by leave on 15 March 2019, the Minister submitted the real burden of the applicants' Wednesbury claims was to seek to enforce adherence to the guidelines by the second respondent. This was evident from the terms of the declaration sought at paragraph 3 of the amended originating application ("falls within" the guidelines, such that the request "should be referred to the Minister…"), the relevant paragraph of the applicants' submissions (where the applicants expressed the focus of review as the second respondent's application of the normative standards set out in the guidelines as to a "significant change in circumstances", "new, substantive issues" and "unique or exceptional circumstances") and from what appears following that paragraph.
64 However, the Minister submitted, judicial review was not available to compel the executive to adhere to its substantive promises or statements set out in documents such as the guidelines. That was the necessary consequence of the rejection in Australia of the doctrine of substantive legitimate expectations (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [65]-[77] (McHugh and Gummow JJ, Callinan J agreeing at [148]).
65 That position, the Minister submitted, cohered with earlier decisions of this Court regarding attempted reliance on guidelines as the source of rights of a person claiming to be aggrieved by administrative action: see Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264 at 269-270 per Fox J; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 540 (Sheppard J); and Broadbridge v Stammers (1987) 16 FCR 296 at 300.
66 In Conyngham, the Minister submitted, Sheppard J (at 540-541, with whom Beaumont and Burchett JJ relevantly agreed) echoed Fox J's caution, expressed in East West Trading, against "elevating … guidelines to the status of law" and found the primary judge had erred in making a declaration that an application for sponsorship "was within the policy guidelines issued by the respondent" (echoing the form of declaration sought in the amended application at [3]). That was on the basis that such guidelines in fact conferred no rights but rather operated only to indicate to applicants and those administering the Migration Act how applications "would usually be dealt with". That was binding authority directly in the path of the declaration sought by the applicants at paragraph 3 of the amended originating application.
67 The Minister submitted that those authorities had not been disturbed or revisited and had, rather, been cited with apparent approval. See eg Holden Limited v Chief Executive Officer of Customs (2005) 141 FCR 571 at 582-583 [37]-[38] and Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 51-52. See also, in relation to the proper construction of an enactment requiring that a power or function be carried out in accordance with policy, Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 391 [94]-[95] (referring to Broadbridge). Moreover, they cohered with the position later adopted in Lam. They can also be seen to be consistent with, and may more fully explain, Lindgren J's reasoning in Raikua at 522 [64] ("not something provided for by the Act, and does not itself affect legal rights") and 524 [70]. They had obvious application to the guidelines, which likewise involved discretionary value judgments based on broadly and imprecisely described notions such as "unique or exceptional circumstance" accompanied by non-exhaustive examples of the same character, directed to facilitating consideration by the Minister of the exercise of a dispensing power, which is itself conditioned on an opinion as to the amorphous concept of what is in the "public interest". Such a document, of its nature, did no more than indicate to applicants and those administering the Migration Act how applications will usually be dealt with. A failure to adhere to it gave rise to no error of the nature alleged here.
68 The statement in Broadbridge, the Minister submitted, also revealed the difficulties in the applicants' appeal to notions of "islands of power" in its written submissions and the suggestion (made at the hearing) that the guidelines derived some form of binding force from the Constitution itself. As in Broadbridge, departmental officers applying the guidelines remained subject to the internal control of the executive branch through supervision, correction, discipline and complaint - including under the code of conduct in the Public Service Act 1999 (Cth). The Minister was, in turn, accountable to Parliament for the discharge and efficacy of those internal processes. There was no foundation for asserting that there existed any relevant "accountability gap" in those circumstances. Nor, contrary to the submissions advanced orally by the applicants, did that provide any sound basis for divining some sort of obligation to comply with the guidelines derived from ss 61, 64, 67, 69 and/or 84 of the Constitution which was enforceable at the suit of the applicants.
69 In relation to Ground 1, the Minister submitted that there were no duties on departmental officers comparable to the statutory duties considered in NABE v Minister for Immigration [2004] FCAFC 263; 144 FCR 1 at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] and see also Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 (at [24]-[25] Gummow and Callinan JJ, Hayne J agreeing at [95]), to consider an application, deal with it in a particular manner or provide reasons from which an error of the kind alleged in the applicants' first way of making out unreasonableness could arise. Such a duty could not be implied in the exercise of non-statutory executive power generally. The position was a fortiori in the case of the particular species of non-statutory executive power that arose here: a power of administrative inquiry and advice. Nor could the guidelines themselves or the Constitution supply the source of any such duties for the reasons already given. Indeed, in oral submissions in reply the applicants disavowed any reliance on the guidelines as supplying the source of an obligation said to have been breached in relation to its first ground.
70 In relation to the applicants' second way of framing alleged unreasonableness, the Minister submitted that the absence of a statutory source of power was a significant obstacle to the determination of the boundaries of non-statutory executive power. The relevant species of non-statutory executive power involved in the present case could be described as "administrative inquiry" and preparation of "advice" (Plaintiff S10/2011 at [46]-[48] per French CJ and Kiefel J). In Clough v Leahy (1904) 2 CLR 239 at 156, Griffith CJ described a power of inquiry as that of "asking questions, … a power which every individual citizen possesses." The Minister submitted it was difficult to conceive of circumstances in which the purported exercise of a non-statutory power of this character could be said to occur outside lawful boundaries.
71 It was ultimately not necessary for the Court to determine that issue, because the applicants did not in fact advance their Wednesbury claim by reference to the scope of a power to inquire and advise, but rather by reference to the guidelines themselves.
72 The Minister also submitted in its supplementary written submissions that Thurgood did not assist the applicants. There Wilcox J, at 569, proceeded on the basis, conceded by counsel for the respondent, that s 39B of the Judiciary Act would enable the Court to issue a writ of mandamus compelling the Director of the Office to consider according to law an application for legal assistance. Understandably (in light of that concession), the matters the Minister raised in opposition to the current claim were not in issue between the parties.
73 In supplementary written submissions filed by leave on 27 March 2019, the applicants submitted that the occasions on which Australian courts had so far considered the legal status of guidelines had generally arisen in relation to statutory rather than non-statutory powers. There was a distinction between guidelines that guided the exercise of a statutory power and guidelines that guided the exercise of a non-statutory power. The courts had, of course, been wary of enforcing guidelines that guided the exercise of statutory powers, because to do so would be to allow the Executive to fetter the power conferred on it by Parliament. Where the underlying power was non-statutory, the position was fundamentally different. No equivalent question of fettering arose. In the non-statutory context, this meant that any principle of non-bindingness of guidelines must find its source in another principle. The respondents did not identify any such source. Rather, close analysis of the context suggested that guidelines can have something like a "binding" effect: quite apart from the cases addressed in oral submissions, Ch II of the Constitution could be seen to contemplate that the Executive Government of the Commonwealth might, itself, organise the exercise of non-statutory power and that it might do so in ways that give rise to legally enforceable constraints. Those constraints might in an appropriate case derive from the terms of the guidelines themselves, or they might derive from the structure of the relevant power as one to be exercised by a decision-maker applying guidelines to facts or requests.
74 The applicants submitted that the principle to be discerned from Broadbridge was not that guidelines were unenforceable by a court, but rather that close attention must be paid to the character of guidelines in a particular case. Implicit in the decision was the possibility that a delegation of power might be legally constrained by reference to guidelines or policies.
75 In the context of non-statutory executive power, the applicants submitted it was open to the Executive Government of the Commonwealth to confine that power by the promulgation of guidelines conditioning the exercise of power and, more specifically, by organising the exercise of power in a system that contemplated applications or requests and the application of guidelines to those requests.
76 The applicants submitted that the organisation of non-statutory executive power pursuant to Ch II of the Constitution was not a matter of mere communication by government to its subjects. It was the carrying out of the constitutional task contemplated by Ch II itself. Parliament, which could of course regulate the executive power and displace the Executive branch's own control, must be taken to have acted or, importantly, not to have acted on the basis of the organisation in fact implemented by the Executive. In that sense, the prevailing organisation of non-statutory executive power had a particular constitutional significance in that it underpinned or stood as the implicit premise for any absence of statutory control. The applicants' case asked the Court to recognise that in some contexts - particularly contexts involving the organisation and control of the exercise of non-statutory public power by civil servants - guidelines created legally enforceable limits on power. Those limits may be derived from the terms of the guidelines themselves (referring to the second way unreasonableness was alleged) or, more subtly, they might derive in a more attenuated way from the structure of the relevant power as one to be exercised by a decision-maker applying guidelines to facts or requests (referring to the first way unreasonableness was alleged).
77 In Broadbridge, at 300, the Court referred to the expectation that the delegate "would be open to correction or discipline by the Commission should he depart in material respects from [the policy manual]". Where such administrative accountability was lacking, that would tend to support the inference that adherence to the relevant guideline was intended to be reviewable by the Courts. The Executive government cannot say to Parliament that the exercise of non-statutory power is taking place according to guidelines but simultaneously say to the Court that the guidelines do not constrain that power (even in the attenuated sense advanced in the first way unreasonableness is put, that the civil servant in the second respondent's position must exercise power by applying the guidelines to the facts and therefore understand the nature of the request before him).
78 The applicants submitted that the existence in fact of reasons then engages the seriously considered obiter dictum in Singh (2014) 231 FCR 437 at [47] that "it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was" and that the "intelligible justification must lie within the reasons the decision-maker gave". The court can, by reference to the reasons in fact given, "identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable" (see Singh at [45]). It followed, the applicants submitted, that the Court may discern legal unreasonableness from the second respondent's reasons and the surrounding factual circumstances (ie the first way unreasonableness is put) whether or not it formed the view that the outcome was of itself unreasonable (ie the second way unreasonableness is put). That is, if the second respondent acted unreasonably by failing to comprehend the nature of the request, as the relevant non-statutory executive power required, then it did not matter whether the outcome might by itself otherwise be explicable, "bearing in mind that it is for the repository of power, and not the Court, to exercise the power" (see Singh at [45]).