FEDERAL COURT OF AUSTRALIA

Applicant A219/2003 v Refugee Review Tribunal [2004] FCA 1311

PRACTICE AND PROCEDURE – remitter of application for constitutional writs in High Court – application outside time limited by High Court Rules – whether time limit imposed by High Court Rules applies in proceedings remitted to Federal Court – whether extension of time required

Federal Court Rules

High Court Rules O 55 r 17, O 55 r 30, O 60 r 6

Judiciary Act 1903 (Cth) s 44

Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

Re Commonwealth of Australia;  Ex parte Marks (2000) 177 ALR 491 cited

Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 cited

Das v Minister for Immigration & Multicultural Affairs (2004) 208 ALR 229 cited

S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 451 cited

M206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 24 cited

Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 cited

Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 204 ALR 115 cited

Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 cited

Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266 cited

M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146 cited

Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 cited

Hassen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1036 cited

Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567 cited

Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 cited

Re Ross; Ex parte The Australian Liquor, Hospitality & Miscellaneous Workers’ Union (2001) 108 FCR 399 cited

P33 of 2003 v Refugee Review Tribunal [2004] FCA 474 approved

Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89 cited

Applicant A184 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1076 cited

Applicant S61 of 2002 v Refugee Review Tribunal (2004) 206 ALR 461 cited

M211 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 660 cited

NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 317 cited

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited

Re Minister for Immigration and Multicultural and Indigenous Affairs;  Ex parte Applicants S134/2002 (2003) 211 CLR 441 cited

The King v Commonwealth Court of Conciliation and Arbitration;  Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 applied

Aronson, Dyer and Groves, Judicial Review of Administrative Action (3^rd ed, 2004)

APPLICANT A219/2003 v REFUGEE REVIEW TRIBUNAL, SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & COMMONWEALTH OF AUSTRALIA

No S 768 of 2003

FINN J

ADELAIDE

12 OCTOBER 2004  

THE COURT ORDERS THAT:

1.         The application be dismissed with costs. 

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

REASONS FOR JUDGMENT

1                     This proceeding for relief under s 75(v) of the Constitution in respect of a decision of the Refugee Review Tribunal was filed in the High Court pursuant to leave granted by Gaudron J consequent upon the decision of the High Court in the Muin and Lie representative proceedings:  see Muin v Refugee Review Tribunal (2002) 190 ALR 601.  The applicant was a party represented in the Lie representative proceedings.  On his filing a draft order nisi, the applicant’s proceeding was remitted instanter to this Court pursuant to a further order of Gaudron J.  The relief the applicant seeks against the Tribunal is the issue of writs of certiorari and mandamus.

BACKGROUND TO PROCEEDING

2                     The decision of the Tribunal in issue was handed down almost a decade ago on 20 October 1994.  On 22 November 1994 the applicant applied for an order of review of that decision.  This was dismissed by O’Loughlin J on 9 June 1995.  No appeal was made against that decision.  There is no evidence before me of any action being taken under the Migration Act 1958 (Cth) to secure his removal from the country.

3                     On 9 November 1998 the applicant was named as a member of a representative proceeding which was later consolidated in the Muin and Lie proceedings.

4                     No explanation has been given as to what, if anything, the applicant did to prosecute his case during the almost three and a half year period between O’Loughlin J’s decision and his joining the representative action.  No explanation of the delay has been proffered at all.

5                     In these circumstances, and having regard to the merits of the application, it is inconceivable that the applicant would be given an extension of time in which to apply for writs of certiorari and mandamus if his application as remitted is nonetheless subject to the time limits of the High Court Rules (six months and two months respectively:  see O 55 r 17 and O 55 r 30), notwithstanding there is a general discretion under those Rules to enlarge time:  see O 60 r 6:  on that discretion see Re Commonwealth of Australia;  Ex parte Marks (2000) 177 ALR 491 at [16];  Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931. 

The Applicability of the High Court Rules

6                     There is a large number of decisions of this Court in which it has been either decided or assumed that time limits imposed by the High Court Rules in which to apply for mandamus or certiorari apply as well to matters remitted under s 44 of the Judiciary Act 1903 (Cth) notwithstanding that (i) no application was made to the High Court for an enlargement of time under O 60 r 6;  (ii) the remitter did not give any direction in relation to determining whether an enlargement of time should be given;  and (iii) the Federal Court Rules impose no such time limits within which to apply for these writs:  see e.g. Das v Minister for Immigration & Multicultural Affairs (2004) 208 ALR 229;  S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 451;  M206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 24;  Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198;  Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 204 ALR 115;  Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331;  Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266;  M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146;  Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054;  Hassen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1036;  Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567;  Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576;  and see also Re Ross; Ex parte The Australian Liquor, Hospitality & Miscellaneous Workers’ Union (2001) 108 FCR 399.

7                     However, relatively recently some number of Judges of this Court have expressed or taken the contrary view.  Subject to the terms of the s 44 remittal, an application for an order nisi for writs of certiorari or mandamus which is out of time in the High Court does not require an extension of time when remitted to this Court.  As French J observed in P33 of 2003 v Refugee Review Tribunal [2004] FCA 474 at [25]:

“There is a question whether an order for remitter by the High Court overcomes the need for an extension of any time limited by the High Court Rules for the commencement of the remitted proceedings.  The Rules in this respect do not define or limit the jurisdiction of the High Court which is conferred directly by the Constitution.  They rather regulate or define conditions for the exercise of the powers of that Court.  So O 55 r 17 provides that ‘an order nisi for a writ of certiorari … shall not be granted’ unless the application for the order is made not less than six months after the date of the impugned decision.  In my opinion the remitter of the proceedings into the Federal Court upon the filing of a draft order nisi did not bring with it a condition restricting the exercise of the Federal Court’s powers by reference to the Rules of the High Court which apply to the exercise of its powers.  The remitter order having been made, no extension of time was necessary.”

See also Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89 per Dowsett and Lander JJ;  Applicant A184 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1076;  Applicant S61 of 2002 v Refugee Review Tribunal (2004) 206 ALR 461 at [3];  and see M211 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 660 at [10]. 

8                     Despite the weight of authority to the contrary, my own view accords with that of French J.  Subject to the terms of the remitter order, the Federal Court Rules alone apply to the matter remitted:  see Applicant S422/2002 at [19].  In consequence no extension of time is necessary and I am at liberty to proceed, as I do, under O 51A r 5(1) of the Federal Court Rules.

9                     Notwithstanding this conclusion I consider the resultant state of affairs unsatisfactory.  In my view, the same considerations which have animated the High Court to impose time limits for the bringing of applications for certiorari and mandamus apply with equal force to like applications in this Court.  Attention in this regard should be given to an amendment to our Rules and, in that regard, consideration should also be given to extending the imposition of time limits to applications for prohibition.

The Setting of the Application

10                  The applicant is an Indian national of Sikh ethnicity.  His Convention based claims were founded on the denial of the right to practice religion and the denial of free speech and of having had false charges made against him by a political rival as a consequence of his support of a candidate in the 1992 elections in the Punjab.  The Tribunal did not accept his claims and, in the case of the false charges allegation, found he had access to protection in India.  It affirmed the delegate’s decision that the applicant was not entitled to a protection visa.

11                  As I indicated at the outset, the applicant was part of the Muin and Lie representative proceedings.  As his claim is a variant on that in Muin it is necessary to describe in a little detail aspects of the procedural steps taken in the making and consideration of his application.

12                  Probably after lodging his application for a visa but before the delegate’s decision, the applicant sent two documents to the Minister’s Department.  I will describe these as (i) a document certifying he was a worker for a candidate at an Assembly election;  and (ii) an Amnesty International document concerning the possible disappearance of an arrested Punjabi lawyer.

13                  The delegate’s decision refusing the application was sent to the applicant on 14 January 1994.  The documents referred to in the delegate’s decision included a US Department of State Report on India for 1992, a 1991 Amnesty International Report on Human Rights Violations in the Punjab and a DFAT advice having the Cable No O.ND84486.  As a matter of convenience I will refer to these documents as the “Part B documents”. 

14                  The applicant’s solicitors filed an application for review with the Tribunal on 11 February 1994.  On 17 February the Tribunal wrote to the applicant indicating (inter alia) that:

“The Tribunal has requested the Department of Immigration and Ethnic Affairs to forward a copy of its documents about your case.  You should now also forward any documents or written arguments you wish the Tribunal to consider.”

15                  In his affidavit filed in this Court the applicant has deposed that:

“I understood the Tribunal’s letter dated 17^th February 1994 to mean that the Immigration Department, or the delegate, would send to the Tribunal all of the documents I had submitted in support of my claim, and all of the documents that the delegate had looked at, including the Part B Documents, in reaching the view that I was not a refugee.”

16                  In responding to the Tribunal’s letter the applicant’s lawyers sent copies of three documents to the Tribunal which were described as follows in the accompanying letter:

“1.       Warrant of Arrest for applicant dated 7/8/93.  We are instructed that was sent to his village where he normally lived – namely V Jhal Lehi Wala (Punjab).  Our client was not there at the time and the Warrant was not served personally on him. 

2.         Summons to attend hearing dated 23/9/93 served on applicant’s brother-in-law (his sister’s husband) requiring payment of bail of 24,000 Indian rupees.  That amount is still to be paid.

3.         Subsequent Warrant of Arrest for application (sic) dated 23/9/93 – requiring attendance within 30 days.  At the time of issue, applicant in Australia and document not served personally on him.”

17                  The applicant subsequently received from the Tribunal a letter dated 15 June 1994 which indicated that it had “considered all of the documentation relating to [his] case”, but that it was unable to make a decision on that documentation alone.  It invited him to attend a hearing of his matter.

18                  The applicant deposed in his affidavit that:

“I understood the Tribunal’s letter of the 15^th June 1994 to mean that the Tribunal had looked at all of the papers in my case including the documents provided to the Tribunal by the delegate, and the Part B documents”

He went on to say that he attended the hearing;  that it was hard to remember “all of the questions put to me”;  and that he did recall that some general comments about the situation in India were put to him but he did not recall the Tribunal putting the details out in the country reports and other independent information to which it referred in its decision. 

19                  The Tribunal did not refer in its decision to the three documents referred to in the delegate’s decision which I have described as the Part B documents although it referred, understandably, to a more current version of the US State Department Report.

20                  The applicant’s response in his affidavit to this is as follows:

“I have since had an opportunity to look at the Part B documents.  I believe that the Part B Documents were very helpful to my case.  In particular, the Part B Documents include a US Department of State Report about India for 1993, an Amnesty International Report regarding India dated May 1991, and a DFAT Cable number ND84486.  All of these documents are strongly supportive of my claim that I suffered persecution in India because of my religion, and because of my involvement in Sikh politics.  If I had known that this important information had not been sent to the Tribunal by the delegate, I would have drawn the documents to the attention of the Tribunal.  In my opinion, the Tribunal could not possibly have reached a fair view in my case without having regard to these documents. 

In relation to the documents referred to by the Tribunal in its decision, I can say that if I had been provided with copies of those reports, I would have highlighted to the Tribunal the aspects of the reports that were favourable to my case.

In addition, had I been informed of the adverse information referred to by the Tribunal in its decision, I would have undertaken additional research and produced additional information and evidence to the Tribunal.”

The applicant gives evidence

21                  I should make the following observations at the outset.  The applicant does not speak or read English.  His brother, who clearly has assisted him throughout and who was present at the hearing before me, does.  Such comprehension as the applicant has of the communications made to him from the Department and the Tribunal – if he had or has much comprehension of them at all – was probably derived from his brother.  His brother did not give evidence.

22                  The applicant was cross-examined on his affidavit.  Such was the tenor of his oral evidence that it would be unsafe to rely upon any portion of that affidavit in the absence of corroborating evidence. 

23                  The claim he articulated in cross-examination was at marked variance with what was said in his affidavit.  The documentation which he equated with the Part B documents and about which he was concerned appear only to have been those two documents which were sent by him to the Department prior to the delegate’s decision and the three documents his solicitor sent to the Tribunal.  He repeatedly referred back to these in his evidence – even despite valiant attempts by his counsel in re-examination to get him to focus on the country information documents.  Emblematic of his evidence is the following passage of cross-examination:

“MR RODER:             Could you tell the court why it was important to you that all of the documents that you have sent to the department were sent to the tribunal?  Why was it important to you that all the documents you had sent to the department were sent to the tribunal?

INTERPRETER:         Those papers had the police report, plus the cuttings from the newspapers regarding my arrest, and all the details, which were important to my file.

MR RODER:                And as long as the tribunal had those documents before it you didn’t have any concerns, did you?

INTERPRETER:         Then the decision would have been in my favour.”

24                  His evidence on what I have called the “Part B documents” is that he got those documents while he was in Australia;  that he read them;  that they were important to him “regarding [the] police report [and charges put on him] and other reports and the cuttings from the newspapers”;  and that the documents were provided by his brother to the department.  I do not accept any of this evidence.  Nor do I accept that the applicant had any appreciation of the content and the significance to his claim of the Part B documents. 

25                  I equally do not accept that he attributed to those documents the significance given them in his affidavit or that he had a genuine concern about whether or not they had been sent to the Tribunal.  His concern lay elsewhere – with his own documents and with the Tribunal’s address of them.

26                  The applicant did make an isolated reference to Part B documents and an Amnesty report in cross-examination.  This was not elaborated upon.  Because I considered there may have been a deal of confusion affecting the applicant’s evidence, I gave considerable latitude to his counsel in re-examination to explore his understanding of the Part B documents.  All that this could elicit was the evidence referred to above which I do not accept.

27                  I am not prepared to accept the evidence that adverse country information was not put to him by the Tribunal.  The applicant’s memory has proved to be more than fallible.  He does not recall the detail of the hearing.  This is unsurprising given that it occurred ten years ago.  However, I am not prepared to infer from his bare assertions that there was any denial of procedural fairness in how the Tribunal put to him adverse matters upon which it could or would rely.  It would be grossly unfair to the Tribunal to do so in the circumstances. 

CONCLUSION

28                  The manner in which the applicant’s claim was formulated brought it within the rather distinctive rubric recognised by the Full Court of this Court in NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 317.  It was a claim that there was a failure to send the Part B documents to the Tribunal;  the applicant was misled as to this;  and if he had realised the documents had not been sent, he would have taken different action.

29                  As I have indicated, I have rejected the substance of his claim as put in his affidavit.  His oral evidence betrayed misunderstandings on his part but they were unrelated to the procedural unfairness alleged.  His concern was with the documentation he sent to the delegate and to the Tribunal.  Whatever he may have believed or been led to believe about this, the Tribunal had that documentation.  It nonetheless did not accept he was persecuted as he claimed.

30                  The application must be dismissed with costs.

31                  I would add that, even if a case of procedural unfairness had been made out, a very real question would have arisen as to whether the grant of relief should be withheld.

32                  It is well accepted that “relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary”:  Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33];  Re Minister for Immigration and Multicultural and Indigenous Affairs;  Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [90].  As was said of the writ of mandamus in The King v Commonwealth Court of Conciliation and Arbitration;  Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400:

“the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made.  The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”  Emphasis added.

See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3^rd ed, 2004).

33                  On the material before me the present seems to be a case of “unwarrantable delay”. 

Associate:

Dated:              12 October 2004