Applicant M100/2003 v Minister for Immigration
[2004] FMCA 157
•18 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| APPLICANT M100/2003 v MINISTER FOR IMMIGRATION & ANOR | [2004] FMCA 157 |
| MIGRATION – High Court application for constitutional writs, declaratory and injunctive relief remitted to the Federal Court and transferred to the Federal Magistrates Court – whether arguable case – whether time limits apply – whether time should be enlarged. |
Migration Act 1958, ss.476, 476(4), 477
Muin v Refugee Review Tribunal (2002) HCA 30 (2002) 190 ALR 601
Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 (Unreported decision of Marshall J
8 December 2003).
R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952)
1 All Eng LR 122
General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125
Re Commonwealth of Australia Ex parte Marks (2000) 177 ALR 491
| Applicant: | APPLICANT M100/2003 |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL |
| File No: | MZ 1487 of 2003 |
| Delivered on: | 18 March 2004 |
| Delivered at: | Melbourne |
| Hearing Dates: | 24 and 26 February 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person (assisted by Hindi interpreter) |
| Solicitor for the Respondents: | Mr B Wee |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for order nisi is refused.
The applicant shall pay the respondents' costs fixed in the sum of $2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1487 of 2003
| APPLICANT M100/2003 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
Introduction – Generic Issues
This is one of a number of applications which for convenience were heard together by the Court over a period of two days. The applications were considered as a group as they have a number of common features or what I would describe as generic issues which are relevant to each application. The proceedings all relate to visa applications under the Migration Act 1958 (the Migration Act).
In each application the applicants had initially commenced proceedings in the High Court of Australia seeking declarations or writ of prohibition or for an injunction or for orders in the nature of certiorari or mandamus against the respondents. Each case had been remitted by the High Court of Australia to the Federal Court of Australia. Each relates to applications for protection visas refused by the Refugee Review Tribunal (the RRT). Each case joined in representative proceedings in the High Court in an application which became known as Muin v Refugee Review Tribunal (2002) HCA 30 (2002) 190 ALR 601 (Muin).
It is also relevant to note that in each case the applications had been transferred by the Federal Court of Australia to the Federal Magistrates Court. Prior to the transfer, however, orders of a similar kind were made in each application, though with varying dates. In the present application orders were made by Marshall J on 9 October 2003 in the following terms:-
“1.The application for an order nisi and the hearing of return of the order nisi, if granted, be conducted as a single hearing.
2.The applicant(s) file and serve:-
(a) a statement of contentions of relevant facts and law setting out:
(i) particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought; and
(ii)if the applicant(s) require an extension of time in which to file this application, the reasons why an extension of time should be granted; and
(iii)if the applicant(s) has previously sought judicial review of the Refugee Review Tribunal decision the subject of this application, the reasons why res judicata or issue estoppel does not apply or why Anshun principles should not apply; and
(b) any affidavits which the applicant(s) intends to rely on at the hearing;
on or before 10 November 2003.
3.The directions hearing be adjourned to a date to be determined by the docket judge.
4.In the event that Order 2 is not complied with, the applicant(s) will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.
5.There be liberty to apply on two days' notice.
6.Costs be reserved.”
In each case the respondents had filed and served an outline of submissions. Essentially the respondents seek to have the applications dismissed in each case and although a separate notice of motion or application for summary dismissal has not been relied upon, the court has been invited to dismiss the application and make an order that the application for an order nisi be refused, together with an order that the applicant(s) pay the respondents' costs fixed in the sum of $2000.
In each case the primary argument of the respondent is that the application should be refused on the basis that the applicants have failed to discharge the necessary evidentiary burden. In the alternative, it is claimed that as a result of noncompliance with order 2 of the orders made by Marshall J, the application should be refused on the basis that the applicant has not complied with that order and in a sense has not shown cause why the matter should not stand dismissed.
When this application along with all the other applications were initially listed for hearing on 24 February 2003, I decided to hear the matter at a joint sitting to enable the applicants present to be aware of arguments that may be advanced for and on behalf of other applicants and to hear arguments raised by counsel appearing for the respondents. Various counsel appeared for the respondents in the applications, which I grouped together according to the representation. In addition, in one application counsel appeared on a pro bono basis for an applicant and raised certain submissions which I shall deal with presently, and in the circumstances I thought it was appropriate to permit each of the applicants to adopt the arguments advanced by pro bono counsel in that application. For convenience, I shall refer to those submissions as a "preliminary issue" which shall be considered presently. Some applications were heard on a further day.
Relevant Law
During the course of submissions counsel for the respondents referred the court to the decision of the Federal Court of Australia in Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 (Unreported decision of Marshall J 8 December 2003) (M155/2003). In that case, when dealing with the issue of claimed failure to give an applicant an opportunity to comment on country information before it made its decision, the court stated the following:-
“18 There is no indication in the reasons of the RRT that it gave the applicant an opportunity to comment on the country information before it made its decision. However, in the absence of any affidavit material from the applicant it is impossible to know whether it would have made any difference to his case if he had received prior notice of the country information referred to by the RRT.
19 As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at [37]:
‘Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’
20 In Lam, the Chief Justice said at [38]:
‘No practical injustice has been shown. The applicant lost no opportunity to advance his case. ...It has not been shown that there was procedural unfairness.’
See also per McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149].
21 Similarly in this case the applicant has not shown what he would have said if the RRT had given him the country information to comment upon, assuming (without knowing) that it did fail to do so. The applicant said, in his oral submission today, that he is currently unable to get information from Sri Lanka. That is not the point. The issue is what he would have said to the RRT prior to its decision being given in 1997 or what he would have done if he had been shown the relevant country information before the RRT's decision.”
It is also relevant to note the reference by Marshall J in M115/2003 to the issue of an extension of time where his Honour states the following:-
“9 The first question which arises under O 20 r 2 is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to file his application. I consider that it would be futile to grant the relief claimed against the first respondent. As Gray J said, in respect of a materially identical plea for relief in Re Batuwantudawa [2003] FCA 684 at [14]:
‘...the claim in the draft order nisi for prohibition is limited to the matter designated by its proceeding number in the Tribunal. The Tribunal has completed its dealing with that proceeding. There is nothing left to prohibit.’
10 The next question which arises is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to apply for certiorari. In that context it may be observed, as Gray J did in Batuwantudawa at [7], that no request is made for mandamus which might result in the redetermination of the application in the RRT.
11At [8] in Batuwantudawa Gray J said:
‘The time limited by the rules of the High Court for an application for certiorari is fixed by O 55 r 17 of those rules. An application must be made not later than six months after the date of the decision concerned. Of course, that is subject to the general power in O 60 r 6 of the High Court Rules to enlarge any of the time appointed by the rules. It falls to this Court to exercise that power of enlargement, if it is to be exercised, as a result of the remittal of the proceeding to this Court.’"
I accept that for the reasons given by Gray J in a case cited by Marshall J, namely, Re Batuwantudawa, that in all applications the proceeding for an order nisi for prohibition cannot possibly succeed as having been the subject of an RRT decision, there is nothing left to prohibit.
I further accept that it is relevant in all cases in considering the discrete issue of a claimed failure to give the applicant an opportunity to comment on country information, that as stated by Marshall J, a court is entitled to consider the absence of any affidavit material from the applicant and it is relevant to then conclude that in the absence of any relevant material, it is impossible to know whether it would have made any difference to the applicant's case if prior notice of country information referred to by the RRT had been given to the applicant.
I further accept that in each and every case it is appropriate for the court to consider the general issue of whether any practical injustice has been shown.
In each and every application before the court it is important to remember that applicants seeking constitutional relief have an evidentiary burden to adduce evidence in support of the application. I note in particular the reference to Denning LJ in R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952) 1 All Eng LR 122 where he states at page 131 the following:-
“When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.”
I also note a reference to Kirby J in Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489 where in referring to a denial of opportunity to place material before the tribunal, his Honour states at page 501 the following:-
“Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.”
The Preliminary Issue
A preliminary issue which was raised and relied upon by all applicants concerned the standard of proof which the court should apply in considering whether to refuse the application for an order nisi at this hearing. It was submitted that effectively the hearing is a summary dismissal proceeding and that the authorities dealing with summary dismissal should apply. It was submitted that effectively the application brought by the respondent is one brought pursuant to Order 13 Rule 10 of the Federal Magistrates Court Rules which provides as follows:-
“13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of process of the Court.”
It was noted that there is no application for summary dismissal before the High Court or the Federal Court. It was argued that this is not an adjourned directions hearing as contemplated by the orders of Marshall J in the Federal Court. The Court is mindful of the authorities in relation to summary dismissal and in particular I note the principles referred to by Barwick CJ in General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 129:
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129) 9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129) 10.
… Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
Whilst I am prepared in principle to have regard to the serious consequences which may flow from an order refusing the application for an order nisi I do not accept that the proceedings currently before the Court are analogous to a summary dismissal application under Rule 13.10. It is clear that certain orders were made regarding the filing of material in support of what is described as the “summary dismissal application” and/or I accept that there was correspondence to that effect. In my view the return date of this application before this Court effectively is the first directions and/or “first hearing” before this Court and the orders made by Marshall J apply. In any event in an order nisi application it is incumbent upon all applicants to provide appropriate material in support of the application and otherwise discharge the evidentiary burden referred to in the authorities set out earlier in this judgment. Whilst I have regard to whether or not there is an arguable case I will also further consider the evidentiary material placed before the Court and apply the authorities to which I have referred including the principles set out in the decision of Marshall J in M115/2003.
In my view it is not appropriate to apply the principles set out by Barwick CJ in General Steel as that would effectively reverse the onus placed upon the applicants in each of these applications by virtue of the nature of the application for an order nisi for a prerogative writ and/or the obligations imposed by reason of the directions given by Marshall J in each case as to the filing and serving of appropriate and relevant affidavit material and contentions. Accordingly I do not regard the present proceedings as “summary dismissal proceedings”. In the alternative I am satisfied in any event that if I am wrong in the rejection of the submission that this is a summary dismissal application and/or that this is not a “directions hearing” as contemplated by the orders of Marshall J, I am otherwise satisfied the Court has power to deal with each and every application on the material before it having regard to the fact that each application is an application for an order nisi for a prerogative writ and the hearing before this Court may properly be described as a “first court date” pursuant to Rule 10.01 of the Federal Magistrates Court Rules. Rule 10.01(2)(a) provides an appropriate power for the Court to “hear and determine all or part of the proceedings”. In my view in applications of this kind it is appropriate that the Court deals with the matters expeditiously in the interests of all parties and it is noted that in each case the applicants have been given adequate time and opportunity to present further material as ordered by Marshall J. Even if I were to accept that the appropriate standard is the standard applicable to summary dismissal applications it is still necessary to have regard to the nature of this application and it is open to the Court in dealing with whether or not there is an arguable case to determine that in fact there is no reasonable cause of action and to that extent the finding in any event in this matter is similar to the standard required in summary dismissal cases and in particular the matters referred to by Barwick CJ in General Steel.
Reliance is sought to be placed upon a number of authorities which deal with summary dismissal and the provision of affidavits. As I have decided that this is not properly an application for summary dismissal under Rule 13.10 of the Federal Magistrates Court Rules it is not necessary for me to consider the adequacy or otherwise of affidavit material which is required to be filed in support of such an application under Rule 4.05 of the Court Rules which require an affidavit to be filed with an application. The current proceedings as indicated earlier may involve consideration of features which are similar to summary dismissal procedure including consideration of the merits of the substantive application but in the circumstances I am satisfied that this is not a procedure which requires affidavit material from the respondents and to the extent that any rule requires affidavit material to be provided I would otherwise dispense with compliance with those rules in the interests of justice pursuant to Rule 1.06. It is understandable that affidavit material is required for parties seeking summary judgment and it is perhaps of interest to note that the requirement at common law for affidavit material in those circumstances where proofs are still required before judgment is entered of itself provides a basis for distinguishing the present applications from what might be regarded as a normal “summary dismissal” or “summary judgment” application. I confirm that in my view this is the first hearing of an application for an order nisi for prerogative writ against the backdrop of specific orders made for the parties to file and serve affidavit material and supporting submissions and the Court has a duty and responsibility to deal with the matter expeditiously. Although it may have the appearance of a summary hearing it should not be thought that this is similar to a normal summary dismissal of an ordinary application filed in this Court.
Specific Issues and Background
In this application the applicant lodged an application for a protection visa on 2 November 1990. On 10 March 1993 the application was refused by the first respondent's delegate ("the delegate's decision"). On 9 June 1994 the RRT affirmed the decision of the delegate not to grant a protection visa. On 5 October 1994 the applicant lodged a second application for a protection visa, although this was not accepted as a valid application. On 18 August 1998 the applicant lodged an application for family (special needs/orphan relative) visa. On 29 September 1998 a delegate of the first respondent refused the application for a family visa. On 21 May 1999 the Immigration Review Tribunal affirmed the decision of the delegate not to grant a family visa.
On 10 March 1995 the applicant lodged a third application for a protection visa. On 28 June 1996 a delegate of the first respondent refused the application for a protection visa. On 26 March 1997 application was made to the RRT for review of the delegate's decision of 28 June 1996. On 23 February 1998 the RRT affirmed the delegate's decision not to grant a protection visa. On 16 July 1999 the applicant joined the Muin cases. The application to the High Court was filed on 16 May 2003.
The applicant appeared in person. He attempted to rely upon a video‑recording of a television program and had otherwise sought an adjournment. During the course of the hearing I ruled that the video‑recording was not relevant and that I should not receive that material and I was not prepared to grant an adjournment.
The applicant had relied upon contentions of fact and law filed 31 October 2003. Essentially, reliance was placed upon failure to have the opportunity to comment on country information.
It was submitted by the respondent, and I accept, that the RRT essentially came to its decision without needing to refer to country information. It did so on the basis of the applicant's material. In the circumstances there is no arguable basis for this application. Due consideration was given to the applicant's evidence and it was rejected.
Extension of Time
In general I have approached each and every application on the basis that I am prepared to consider that each seeks an extension of time, that each is out of time by varying degrees and I am prepared to make due allowance for the fact that in some cases by joining in the Muin action the delay may be explained and does not appear to be inordinate, at least in terms of the time period between the decision of the RRT and the time when applicants joined in the Muin case. The key aspect however in considering an extension of time is the issue of the merits of the application and/or whether there is an arguable case which as I have indicated elsewhere in this judgment I am satisfied that the applicant has not established an arguable case and/or discharged the evidentiary burden required to support the application for an order nisi. In those cases where there is a significant delay between the date of the RRT decision and joining the Muin case and/or making application to the High Court apart from the reference to the merits of the case I also for the sake of completeness rely upon the principles expressed by McHugh J in Re Commonwealth of Australia Ex parte Marks (2000) 177 ALR 491 at para 16 (which I note was relied upon by Heerey J in Applicant M216) as follows:-
“In Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 at [16] McHugh J said
‘Independently of the merits of the case, I find in difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. ...The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be put against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.’
It is not necessary for me to consider in detail extension of time given my finding that there is no arguable basis for the application.
Conclusion
I am satisfied there is no arguable basis for the application and accept the respondent's submissions that there has been a failure in the present application by the applicant to discharge the necessary evidentiary burden and/or in any event failure to comply with the orders made by Marshall J referred to earlier in the judgment.
Applying the principles to which I have referred to in the present application I am satisfied the applicant has not provided material of a kind which would enable the court to grant the order nisi sought.
For the reasons given, the appropriate orders of the court will be as follows:-
(1)The application for order nisi is refused.
(2)The applicant shall pay the respondents' costs fixed in the sum of $2000.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 18 March 2004
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