FEDERAL COURT OF AUSTRALIA

M152 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1415

APPLICANTS M152 OF 2002  v  THE REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 204 of 2003

RYAN J

10 DECEMBER 2003

MELBOURNE

On remittal from the High Court of Australia

THE COURT ORDERS THAT:

1.         The application for an extension of time in which to bring these proceedings be refused.

2.         The proceedings be dismissed.

3.         The applicants pay the second respondent’s costs of the proceedings, such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On remittal from the High Court of Australia

REASONS FOR JUDGMENT

1                     The present case has a somewhat tortuous history.  The applicants, who are father and son, applied for protection visas under the Migration Act 1958 (Cth) (“the Act”) on 15 November 1999.  The Minister’s delegate refused their application, and the Refugee Review Tribunal (“the Tribunal”) affirmed that decision on review.  The applicants sought review of the Tribunal’s decision in this Court, and that application was refused by a single judge of this Court, Sundberg J;  Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976.  That decision was not appealed to a Full Court of this Court.  Rather, the applicants filed a separate application in the original jurisdiction of the High Court on or about 6 September 2002, seeking remedies under s 75(v) of the Constitution.  The matter was remitted to this Court from the High Court by an order made by Hayne J on 7 February 2003. 

2                     The application now before the Court is made under s 39B of the Judiciary Act 1903 (Cth), and seeks a writ of prohibition prohibiting the second respondent (“the Minister”) from taking any action on the basis of the decision of the Tribunal in the applicants’ case, a writ of certiorari quashing the decision or an order setting it aside, a declaration that the decision is invalid, an order remitting the matter to the Tribunal for determination according to law and, to the extent that may be necessary, an order for an extension of time to make the present application. 

3                     The facts as found by the Tribunal were summarised by Sundberg J at [2]-[7] of his reasons for decision;

‘2         In the visa application the father claimed he and the son left Sri Lanka due to the father’s active political involvement with the United National Party (UNP).  He said he had been harassed and harmed, his property damaged and son kidnapped because of that involvement.  He said he feared that their lives will be endangered if they returned because they would not be protected by the police.  In a detailed statement submitted to the department on 29 November 1999, the father claimed he had been actively engaged in politics as a UNP supporter since 1975.  In 1977 he was instrumental in organising several UNP meetings in his constituency as a result of which he attracted new members.  He was involved in a poster campaign and monitored security when speakers addressed meetings.  In 1983 he was rewarded for this activity by a job with Air Lanka despite not having any relevant experience.  He assisted other UNP supporters with finding work and housing.  He became popular in his local area with some people, but was disliked by others.  …

3          In 1992 the father provided information to the police as a result of which two men were imprisoned for scheming to cause harm to[, or assassinate,] a UNP Member [of Parliament], Lalith Athulathmudali.  After the UNP was defeated in the 1994 general election the father lost many of his privileges.  In 1995 he was in charge of a demonstration opposite the President’s office protesting against arbitrary transfers of teachers to rural and war zones.  His name was taken by the police.  A few weeks later he was stopped by police and accused of parking in a non‑parking zone.  He was told by a police officer that he should not cause trouble by organising demonstrations.  In January 1999 the father was involved in a protest concerning the unfair allocation of new shops which disadvantaged UNP supporters and favoured People’s Alliance (PA) supporters.  The protest was reported in the media.  His involvement in the protest resulted in threats to his life by anonymous phone callers.  His car was damaged and he was stoned.  Complaints to the police were not followed up.

4          In January 1999 the son came to live with the father.  Until then he had lived with his mother, to whom his father is not married and from whom he is estranged.  On 25 August 1999, while the father was overseas, two men visited the son and enquired about the father’s whereabouts.  The son told them he was overseas.  They returned on 28 August with the same enquiry.  After the father returned from overseas he learned that the two men he had reported on had been released.  He concluded that these were the same men who had been looking for him while he was away, and that they were working for the government.  He reported the visits to the police.  On 14 September 1999, at about midnight, the two men returned to the house.  The father hid during their visit.  They caused considerable damage.  He reported the matter to the police, but claimed they were reluctant to help him.

5          The father took the son out of school, moved to another suburb and used pseudonyms for their safety.  On 18 September 1999 the son’s mother phoned the father to say that some unknown men had inquired about the son.  She called again on 28 October saying that a man had asked one of her neighbours if the son had come to Ampara, where she lived.  On 31 October the son went shopping early in the morning but did not return.  The father reported the disappearance to the police.  The son turned up about 6am the following day saying he had been kidnapped, but had escaped when his captors went to sleep after drinking alcohol.  The father decided it was unsafe to remain in Sri Lanka, and on 2 November left the country.  He said he feared for his and his son’s lives because of his political and social activity in Sri Lanka.

6          At the Tribunal hearing the father amplified some of his earlier claims.  He said he was not a financial member of the UNP in later years, but was a very active supporter.  He said a close friend had found out that some people were planning to assassinate a government member.  He reported the matter to the police.  The two men were charged.  He thought the case was heard in the Colombo Magistrates Court.  He did not know what the charge was or what sentences were given.  When asked about the men’s identities, he said he had never met them.  He knows them as “Three Wheel Chuti” and “Patch Some”.  He thought they were released in 1999, and fears they will kill him if he returns because they have government backing and the police will not support him.

7          A submission from the father’s adviser of 21 August 2000 states that efforts to find particulars of the two men had proved unsuccessful.  In a further statement the father said he had been informed they were from Gangodawilla, near Colombo.  In a submission from the adviser dated 6 September 2000 the names and criminal records of two men were provided.  This information was provided under cover of a letter from a friend.  The information on the convictions was as follows:

“(a)       the names of the two men are –

(i)                    Hiribura Gamage Lal

(ii)                  Kiranagamage Luckshman alias Raju alias Happawana Raju

The applicant was also informed that late Mr Laith Athulathmudali did not want the incident of the attempt to assassinate to be published, but he wanted the police to punish the persons who intended to assassinate him.  Subsequently, the above two men had been framed for some offences and they were later convicted and sentenced.

The applicant also received the following details about the said two men:

(i)                  Hiribura Gamage Lal

                        Charged for stealing fire arms, attempted murder and causing fear.

            His case number is – GMC50906.

            He was remanded on 11 June 1992.

            He was released from prison on 28 July 1999.

Further, the applicant was informed that following the arrest of Hiribura Gamage Lal in June 1992, the other suspect Kiranagamage Luckshman went into hiding and later he was arrested in November 1992.

(ii)                Kiranagamage Luckshman alias Raju alias Happawana Raju

Charged for inhumanly committing a murder using a fire arm.  (The applicant was also informed that the above murder took place in 1988 and it was an unsolved case.)

            He was remanded on 04 November 1992.

            His case number is: H/C 16/41

            Imprisoned at Bussa prison

            He was released on 2 August 1999.”

8          The Tribunal had before it country information about Sri Lanka which showed, amongst other things, that

·        the UNP is the largest and best organised political party in Sri Lanka, and some of the most prominent members of the community are active supporters

·        the other main political party is the Sri Lanka Freedom Party (SLFP) led by the current Prime Minister Bandaranaike

·        the current government is the PA, a left wing coalition that includes the SLFP

·        even in opposition the UNP continues to have political influence, holding 95 of the 225 seats in the Parliament with 41 per cent of the vote, and retains its political dominance in Colombo municipality

·        political violence between UNP and PA supporters at the local government level takes place around election times or in retaliation for events that occurred during election times, but the government is not supportive of violent activities by PA members or supporters against UNP members, and does not turn a blind eye to such conduct

·        there have been no cases of the PA government or its local officials framing UNP supporters on criminal charges, security breaches or thuggery …

·        claims of political harassment of UNP members and supporters should be viewed with scepticism; while there may be individual cases of political rivalries leading to violence, all parties have equal access to the law and police protection

·        Sri Lanka has an independent judiciary, and the government respects the people’s right to approach the courts.’

4                     Before the Tribunal it was of some significance that the applicant father (hereafter, for convenience, “the applicant”) could only provide the nicknames of the men on whom he claims he informed for conspiring to assassinate a member of the government.

5                     The applicant claims that the Tribunal failed to accord it procedural fairness, contravened s 425 or s 414, or made a decision which was unreasonable in the sense outlined in Associated Provincial Picture Houses Ltd v Wednesbury [1948] 1 KB 223, on the grounds that:

(1)    the Tribunal never put to the applicant for comment that it disbelieved his story for the critical reason that he had failed to give the police more than the nicknames of the two men who were, the applicant claimed, convicted after he had informed on them;

(2)    the Tribunal misled the applicant into believing that if he were to provide these men’s names it would have sufficient material to be satisfied of his story, but, instead, rejected the further information which he supplied after the hearing on the basis that it had not been provided at hearing;

(3)    that, given that the applicant had provided the nicknames and very specific details concerning the two men, it would have been a simple matter for the Tribunal to confirm whether or not the two people named in the information provided after the hearing were known by the nicknames provided during the hearing, and that the Tribunal thus fell under a duty to make the necessary enquiries;  and

(4)    that the Tribunal had failed to take evidence from, or ask questions of, the applicant’s son on critical matters – indeed, that it had failed to invite him to give evidence at all – and so had failed to elicit corroborative evidence.

An objection was also taken on the grounds that the Tribunal made no proper findings in respect of the applicant son.

6                     The Minister, through his Counsel, Mr Horan, has drawn the Court’s attention to the inapplicability of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), and the “privative clause” regime it introduced.  Given that the original application to the Federal Court was made before 2 October 2001, but the application to the High Court was made after that date, the decision under review is not covered by the transitional provisions.  A further issue arises as to the time limits applicable to this application.  The applicants contend that the remitter does not automatically attract the Rules of the High Court limiting time.  Indeed, the proposition is advanced that, as the remitter can only be to a Court which “has jurisdiction with respect to the subject matter” under s 44(1) of the Judiciary Act, this Court presumptively has jurisdiction and the issue of whether an extension of time is necessary does not arise.

7                     In answer, Counsel for the Minister respondent pointed to several decisions of von Doussa J dealing with time limits on a remitter:  Applicants A64/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 568, Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567 and Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576.  However, it seems that in those cases the parties did not contest the applicability of time limits under the High Court Rules.  It would clearly be preferable if orders remitting matters to this Court were to include directions regarding the applicable time limits governing applications under s 75(v) of the Constitution.  However, in this case at least, no such order or direction was made.  It would, nonetheless, be a curious result if by a mere remitter an applicant could escape the application of time limits altogether. 

8                     The relationship between the Federal Court Rules and the High Court Rules in respect of an extension of time on a remitted matter was discussed by a Full Court of this Court in Re Ross; Ex parte Australian Liquor, Hospitality and Miscellaneous Workers Union (2001) 108 FCR 399 at [37]-[39]:

[37]     The effect of O 5 r 17 of the High Court Rules is that an order nisi for a writ of certiorari is not to be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding in respect of which the writ is sought.  Similarly, O 55 r 30 requires that an application for a writ of mandamus or an order in the nature of mandamus to a judicial tribunal to hear and determine a matter should be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the High Court or a justice of the High Court.  Order 60 r 6 of the High Court Rules allows “A Court or Justice” to enlarge the time appointed by the High Court Rules for doing an act.  By s 44 (1) of the Judiciary Act 1903 (Cth), where the High Court remits a matter to a court, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which the matter is remitted.

[38]     The employers contended that the application for an order nisi was made to the High Court outside the time limits laid down in O 55.  It should be noted that no time limit is laid down in respect of an application for a writ of prohibition, so that so much of the application to the High Court as sought a writ of prohibition was not subject to any time limit.  If it should be necessary for it to do so, the union applied for an enlargement of the time.  The power of this court to extend time, found in O 3 r 3(1) of the Federal Court Rules, is limited to a power to extend any time fixed by those rules or by any judgment or order.  Section 23 of the Federal Court of Australia Act 1976 (Cth) provides that this court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the court thinks appropriate.  In addition, s 38 provides as follows:

(1)   Subject to any provision made by or under this or any other Act with respect to practice and procedure, the practice and procedure of the court shall be in accordance with Rules of Court made under this Act.

(2)    In so far as the provisions for the time being applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

(3)   In this section, practice and procedure includes all matters in relation to which Rules of Court may be made under this Act.

[39]     A combination of s 23 of the Federal Court of Australia Act and O 60 r 6(1) of the High Court Rules (with its specific reference to “a court”) appears to give to this court power to enlarge the times fixed by O 55 of the High Court Rules if it should be appropriate to do so.  Alternatively, the effect of s 38(2) of the Federal Court of Australia Act is to fill any gap in the Federal Court Rules by making applicable the High Court Rules.  On either view, this court can exercise the power to enlarge the time.

9                     By a similar process of reasoning, I have concluded that, in the absence of an applicable rule of procedure, and subject to any order of this Court, the rules that apply in this instance are the High Court Rules, by operation of s 38(2) of the Federal Court of Australia Act 1976 (Cth).  On remitter, if no order has been made by the High Court (or in the absence of such an order, by this Court), the starting point is that the times fixed by O 55 of the High Court Rulesapply in this Court and this Court can exercise the power contained in O 60 of the High Court Rules.  Insofar as I have a discretion to make an order on some other basis as to time limits applicable to the current proceeding, nothing has been put to me which outweighs the obvious importance of procedural consistency between proceedings conducted in the High Court, and those conducted in this Court on remitter.  I do not see any statutory basis for presuming from the silence of a High Court order of remitter that all preliminary or discretionary questions as to whether the matter should be allowed to be brought out of time have been resolved in favour of the applicant.  The present case is clearly brought outside of the applicable time limits and leave to proceed is necessary  It is axiomatic that in any consideration of whether such leave should be granted requires evaluation of the applicant’s prospects of success and of any prejudice which might be suffered by the respondent.

10                  The respondent also contends that the earlier determination by Sundberg J of issues arising from the same Tribunal decision has the result that the applicants are barred from continuing the present proceedings by application of res judicata, issue estoppel or Anshun estoppel.  It is the applicants’ contention that these issues do not arise, essentially because, when Sundberg J first heard the matter, it was accepted that procedural fairness and unreasonableness were not grounds of review, and those, of necessity, were issues not considered by his Honour.  Consequently, they have been properly raised for the first time in the present application.  I shall return to the procedural issues of time limits and res judicata or estoppel after considering the objections raised by the applicants. 

The applicant’s first ground: failure to put an adverse finding to the applicant for comment

11                  It is to be noted that, on his own evidence, the applicant, while claiming to have been instrumental in the apprehension of the two men allegedly plotting to assassinate a member of parliament, played no discernible part in their subsequent trial and conviction.  There is nothing inherently unlikely in a police informant’s providing hearsay information to police about two persons identifiable by criminal or underworld nicknames or aliases, which, when investigated, results in charges being laid and the later conviction of the suspects.  It is perhaps, open to question, how such a preliminary and anonymous, although essential involvement would lead to those criminals having knowledge of the applicant’s role.  The Tribunal appears to have doubted the applicant’s evidence for two reasons;

(1)    that the applicant took no further interest in proceedings against these men, learning nothing of their proper names, or where they were tried, or of what they were eventually convicted; and

(2)    the further information eventually offered in relation to these men’s convictions did not, on its face, substantiate the applicant’s claim – making reference, as it did, to convictions not apparently related to the plot which the applicant’s information allegedly foiled, and to aliases other than those supplied by the applicant. 

The applicant frames his first objection by contending that the Tribunal rejected the whole of his case, in relation to the two men, on the premise that he had failed to give the police more than their nicknames.  That is to misrepresent both the Tribunal’s reasons and the line of questioning pursued by the Tribunal member during the hearing.  In my opinion, it was, in context, clearly put to the applicant that there was a difficulty with his case in the absence of any information at all, other than his oral evidence about the trial of these two men, when, on his case, he had not been called to give evidence at the trial of the men and did not know anything about where or when they were tried, what the charges were, or what sentences they received.  The Tribunal is recorded as having said (transcript p 19):

‘Really what I am putting to you is, there is an absence of evidence about these people coming before the courts and if you don’t know their name (sic), then it is difficult to deal with that.  And I suppose I am putting to you that I am surprised you don’t know their names –’

12                  A similar question from the Tribunal appears to have been commenced at the bottom of p 19, but the transcript is missing a period of seconds between the end of one side of a tape and the beginning of the next.  By a persistent line of questioning about whether there would have been any newspaper coverage of the trial, the Tribunal made it clear to the applicant that it considered it implausible that he should be unaware of the identities of the two men or the outcome of the proceedings against them.

13                  In my view, merely to fail to put to the applicant, in express terms, the self-evident proposition that it would be hard to accept his claim without any corroborating material did not amount to a denial of procedural fairness.  It had been put to the applicant that the claim was “difficult to deal with” in the absence of evidence regarding the court proceedings.  There was considerable discussion between the Tribunal and the applicant’s representative as to whether court records might be available to substantiate the applicant’s claim.  This raises the applicant’s second objection.

The applicant’s second ground: the Tribunal misled the applicant by stating that all it required to find in his favour was the two men’s names.

14                  This ground is said to derive support from this exchange (emphasis added);

15                  What follows from this exchange is entirely clear.  The Tribunal at no time suggested its concerns would be allayed by the simple provision of two names, nor did it undertake to carry out any particularly broad-ranging investigations of its own.  The Tribunal merely put to the applicant’s representative that, given the presumed existence of court records of any conviction, if the two men’s proper names could somehow be ascertained, it should be possible to procure the relevant records from the court in Colombo.  It did not contemplate receiving evidence in the form of the letter that arrived.  Rather, it contemplated receiving copies of publicly available court records.  As I apprehend it, the Tribunal undertook to check the two men’s nicknames as provided at the hearing against Tribunal databases (the Tribunal refers to “these names”, presumably those actually before it, in apparent contradistinction to “the actual names of these two gentlemen”).  As the Tribunal’s database is not referred to in the reasons given, the natural inference, having regard to the statutory obligation to record findings on “any material questions of fact” imposed by s 430, is that nothing material was found in the database: Minister for Immigration & Multicultural Affairs v Yusuf(2001) 206 CLR 323 per Gleeson CJ at 330 [5], and per Gaudron J at 338 [35].  Had the Tribunal found anything relevant, it would have been obliged to record that finding.  The Tribunal put it to the applicant, and the applicant took the point, that it was difficult to credit that he did not follow whether the case had been reported in the newspapers.  It made it clear to the applicant’s representative that what it was seeking was “some independent evidence about the conviction of these two gentlemen”, in circumstances where the Tribunal was told it could expect that “these two [nick]names would have really come up at the trial”.  The second-hand description of two men’s criminal records with which the Tribunal was eventually provided by a letter in no way:

·        connected the applicant to the convictions;

·        connected the men convicted with the plot described by the applicant; or

·        connected the men convicted with the nicknames provided by the applicant.

16                  It was submitted for the applicant that, given this information as to criminal records and as to criminal nicknames the Tribunal ought to have enquired through its own resources, and even of authorities in Colombo, whether the two men described were also known by the nicknames given at the hearing.  I am unpersuaded by this argument.  The applicant’s evidence was that these men were known by the nicknames given by the applicant to “the entire area”.  If they were the same men as those described in the information subsequently furnished to the Tribunal, those nicknames could be expected to appear in the court or police records of known aliases.  That they do not raises the inference that these are not the same men.  That inference was reasonably open to the Tribunal, and the Tribunal was under no obligation to investigate whether there was material in Colombo capable of supplying the deficiencies in the applicant’s case.

17                  There also appears to be a suggestion that the Tribunal should have cross-referenced the two men’s names in its own resources to see whether the names eventually provided corresponded with the nicknames given at hearing.  If it is correct to infer that the Tribunal did check its databases for the nicknames and found nothing, then the nicknames were obviously not contained within the Tribunal’s records.  It would be a sterile exercise to repeat the search armed with the real names provided subsequently:  those real names could not correspond with anything relevant in the Tribunal’s records if the nicknames were not otherwise known to the Tribunal.

18                  The applicant’s first and second objections have, in truth, the same foundation.  The applicant’s case in effect is that the Tribunal represented that his story would be accepted if the names were provided, then chose to reject the evidence led on that point as it had not been adduced at the hearing, and then disbelieved any part of the applicant’s case going to this claim because, at the hearing, he had been able to provide only nicknames.  In this way, it is submitted, the applicant was misled and, indeed, treated unreasonably or capriciously.  This submission, I consider, is based on an erroneous interpretation of the proceedings before the Tribunal and its reasons for decision. 

19                  What was clearly put to the applicant, and understood by him, at the hearing, was the broader issue that the Tribunal had difficulty accepting that he had taken no subsequent interest in proceedings against these men.  That difficulty, it was put to his representative, could possibly be overcome if there were any independent evidence – preferably court records – going to the conviction and sentence of two men known by the nicknames supplied by the applicant.  No such information was forthcoming.  In the first post-hearing submission of 21 August 2000, the applicant’s representatives informed the Tribunal that: “Various efforts taken to find the names of the persons [who] kidnapped our client’s son or the particulars regarding their case proved unsuccessful”.  Then, in a further submission of 6 September 2000, the criminal record information was provided.  The Tribunal said in its reasons (emphasis added);

‘However, there is no evidence to link this information to the applicant.  Further, given the applicant stated he did not know the names of these men the Tribunal cannot accept that these results are reliable in any way.  … Despite speculation by the applicant, the Tribunal does not accept that two men would be convicted on false murder and related charges because a politician wanted the police to punish the persons who wanted to assassinate him but did not want the assassination attempt published.  Although the Tribunal need not make a finding on the conviction records, it is notable that the details supplied provide different remand dates and the names/alias do not correspond to the monikers given in the applicant’s oral evidence to the Tribunal.  Accordingly, the Tribunal does not accept that these convictions were as a result of information provided by the applicant or that the convictions against the said persons were ‘a frame for other offences, namely the assassination attempt’ which the late Mr Athulathmudali wanted to avoid having published.  Given all of the above, it does not accept that the applicant provided information to the police in relation to an intended assassination of an MP.’

The applicant complains of the Tribunal finding that “given the applicant stated he did not know the names of these men the Tribunal cannot accept that these results are reliable in any way”.  The sentence is infelicitous and there would be much to complain of in it if the Tribunal had simply invited the applicant to supply two names.  It did not.  It invited the applicant to submit independent information going to the conviction of two men known by the nicknames he had given for the crimes he had described. 

20                  The Tribunal’s reasons are not to be assessed strictly, or with an eye keenly attuned to the perception of error:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272;  Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.  The sentence complained of is not entirely clear in its context.  Although the Tribunal said that it did not need to make findings on the reported contents of unproduced conviction records allegedly seen by the writer of the letter forwarded to the Tribunal after the hearing, the clear thrust of its reasons was that the account provided in the letter was implausible and the details provided of criminal records could not be correlated with the applicant’s oral evidence.  The information provided can only be related to his claim by the purely speculative hypothesis that the men had been “framed” for other crimes, which the Tribunal rejected.  That alone would be a sufficient basis on which to disregard the information.  Thus, in my view, the Tribunal clearly rejected the information in the letter on grounds that were both broader and more compelling than the simple assertion that:  “given the applicant stated he did not know the names of these men … these results are [not] reliable in any way”.  In its context I consider that this statement should be read as meaning;  “Nothing contained in this information links it with the rest of the applicant’s case as presented at hearing” (see [14] above).  As the Tribunal observed, the remand dates and known aliases do not relevantly correspond with the applicant’s claims as first presented.  If reference had been made in the letter to the nicknames supplied at the hearing, it would have been a different matter.  The Tribunal was, in that sense at least, right to say it “need not make a finding” on the records as they were, on their face, irrelevant.

21                  It should have been evident to the applicant and his representative that providing two bare names, without more, would not be sufficient and was not, in fact, what the Tribunal had asked for.  This ground is simply without merit.

The applicant’s third ground: a duty to enquire

22                  The Tribunal could only have come under a duty to make further enquiries if it had represented it would do so, or if this were a case like that described by Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170.  The Tribunal plainly did not suggest that it would undertake enquiries of the courts in Colombo.  I consider that Sundberg J was entirely correct when he characterised as follows at [18]-[20] and [33] of his decision what had happened before the Tribunal;

’18       … … … While ss 424(1) and 427(1)(d) empower the Tribunal to make enquiries and obtain information, neither implies there is a duty to do so.  Nor does a failure to consider whether to make inquiries or obtain information constitute a reviewable error.  See Ahmed v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 343 at pars 35‑39, Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725, Kulwant Singh v Minister for Immigration and Multicultural Affairs [1996] FCA 1013, Kabir v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295, Masood v Minister for Immigration and Multicultural Affairs [2001] FCA 405 and Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at par 86.  So far as it relies on s 427(1)(d), the applicants’ submission invites the Court to substitute its own opinion as to what it thinks necessary for that which the Tribunal thinks necessary.

19        Even if, in an appropriate case, a duty to inquire can arise as a result of conduct engaged in by the Tribunal, no duty arose as a result of the Tribunal’s letter dated 23 August 2000, which was after the hearing, in which the applicants were invited to:

“Comment on the absence of independent evidence to support claim that two men were allegedly sentenced as a result of the applicant’s role as an informant in 1992.”

It is quite impossible to derive from this invitation to comment on the absence of independent evidence, that the Tribunal was indicating that if the applicants provided such evidence, that was all it would require by way of corroboration, or that if court details were provided, it would obtain further information about the details.

20        The applicants relied on Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125.  In that case the Tribunal said it would have an identity card relied on by the applicant examined to test its authenticity.  However it failed to do so.  Drummond J said the Tribunal could not have justified its decision by the reasons it gave if the card was shown to be genuine.  In those “unusual circumstances” his Honour thought the applicant should have the opportunity to try to show that the Tribunal’s failure to have the card checked for authenticity when it said it would do so amounted to an error within s 476(1)(a).  The present case is not of that character.  All the Tribunal said it would do was check its own data base.  There is no suggestion that it did not do that.

… … … …

33        The claim that the Tribunal “failed to exercise its jurisdiction” relies first on the alleged errors of law considered in pars 25 to 30 above.  None of those errors has been made out.  Two further matters are relied on.  The first is the claim that the Tribunal failed to exercise, or consider whether to exercise, its power to make inquiries as to the court histories of the two men.  I have rejected that claim in pars 18 to 20.  The applicants sought to amend their grounds to add a further jurisdictional complaint that “by failing to make inquiries in respect of the additional information expressly sought by, and provided to the Tribunal, it failed to take into account a relevant consideration being its conduct of the review process”.  It was said that “if the Tribunal indicated that it might make inquiries in respect of an issue, then that was a consideration that was relevant to assessing whether or not to make these inquiries”.  The only “inquiry” the Tribunal said it would make was to check its data base.  The applicants did not claim it had not done so and there is no evidence to that effect.  The Tribunal did not say it would or might make inquiries of the Colombo Magistrates Court about the information provided.  This ground is not made out on the facts.  It is not necessary to consider whether it is an available ground of review.’

I respectfully adopt what Sundberg J said in the passages just quoted. 

23                  Further, there is no tenable argument that there was information “readily available which was centrally relevant to the decision to be made” in the Prasad sense.  There was nothing before the Tribunal to suggest that the accounts of criminal records provided were in any way related to the applicant’s case.  Indeed, the summary of the records contained in the letter included a number of details (and omissions) that contradicted the case advanced by the applicant.  On its face, the information supplied had nothing to do with the applicant’s claims and, far from pointing to material that was readily available, left it open to the Tribunal to infer that it did not point to anything relevant or certainly not “centrally relevant”.  Insofar as this argument was put, in part on the basis that the enquiry would have been a narrow one and easy to make, considerations of that kind cannot impose a duty in the absence of any representation by the Tribunal that it would make enquiries of the authorities in Colombo or unless the information strongly indicated some credible connection with the applicant’s case.  It is also relevant that the applicant was represented (see, for example, Luu v Minister for Immigration and Multicultural Affairs 197 ALR 433 at 441-2 [28]) and that his representatives had agreed to see what could be discovered from the authorities in Colombo. 

The applicant’s fourth ground: failure to take evidence from the son, and failure to make discrete findings in respect of the son.

24                  Logically, the son’s claim was entirely dependent on his father’s.  Although the son might independently have had a fear of persecution by the two men, it would be a fear of persecution for a Convention reason only if his father’s claim of having foiled a politically motivated assassination were accepted.  This is the short answer to the contention that, in breach of the Act, the Tribunal did not conduct an independent review of the son’s application as an entirely distinct exercise.  It is simply not to the point that the Tribunal did not ask extensive questions of the son in relation to his own, separate claim.  In this sense, Sundberg J, at [23] of his reasons, rightly characterised the claim that the Tribunal had failed to invite the son to give evidence in his own, as opposed to his father’s, case as “simply wrong”. 

25                  It was also entirely clear from the answers which the applicant’s son gave to the Tribunal that he did not know the names of the two men in question.  Given that it was their names that were of central concern to the Tribunal, it is untenable to assert that the son was in a position to give highly corroborative evidence of identity.

26                  A further argument was that the Tribunal lacked jurisdiction to make a decision in the applicant son’s case because the delegate had not recorded his decision in respect of the son in a separate decision record.  The obligation to create a decision record only arises for the purposes of s 66(1) which stipulates:  “When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way”.  The prescribed content of that notice is set out in s 66(2).  However, s 66(4) provides that; “Failure to give notification of a decision does not affect the validity of the decision”.  The “decision record” is not a condition of the exercise of jurisdiction by the Tribunal;  the question of whether the Tribunal has jurisdiction depends in part on whether a decision has been in fact made, not whether a particular document has been created:  s 411.  The decision record is merely created to satisfy the requirements of s 66(1), which contains nothing, as I read it, to prevent the creation, as in this case, of a joint decision record where more than one application is founded on the same alleged facts.  Further, even if some formal defect had existed in the decision record, it seems apparent from s 66(4), that Parliament intended that a failure to give effectual notice to an applicant of a decision would not be an error going to jurisdiction (see the discussion in VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 at [26]).  Thus, even if the Act provided (as it plainly does not) that the fact that the son was not notified separately meant he was not notified at all, that would still not affect the validity of the delegate’s decision in respect of the son.

Conclusion

27                  It will be apparent from the foregoing reasons that the applicants must first obtain an extension of time before this Court can entertain their substantive application.  However, as I have sought to demonstrate, the grounds advanced by the applicants are all without merit and have no prospect of success.  Accordingly, the application for an extension of time in which to commence these proceedings is refused.  It is therefore unnecessary to consider the Minister’s arguments of res judicata or estoppel.  If I were wrong as to the applicable time limits, and no issue of res judicata or estoppel arises, I would still dismiss the application for the reasons explained in reviewing the merits of the applicant’s claims.  It follows that there must be an order refusing an extension of time in which to bring these proceedings and the applicant must pay the respondent’s costs.

Associate:

Dated:              10 December 2003