Applicant M198-2004, Ex parte - Re MIMIA & Anor

[2004] HCATrans 568

[2004] HCATrans 568

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M198 of 2004

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

J. VRACHNAS, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

APPLICANT M198/2004

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO MELBOURNE

ON MONDAY, 13 DECEMBER 2004, AT 9.33 AM

Copyright in the High Court of Australia

__________________

APPLICANT M198/2004 appeared in person.

HIS HONOUR:   Do you understand, do you, sir, that because the Migration Act says now that the names of applicants are not to be recorded on transcript or in judgments I have, I am afraid, to simply address you anonymously, which is not how I would wish to do it but how I must do it.  So I mean you no discourtesy, but forgive me if I address you without using your name.  Now, you are the applicant?

APPLICANT M198/2004:   Yes.

HIS HONOUR:   And you appear for yourself, do you?

APPLICANT M198/2004:   Yes, your Honour.

HIS HONOUR:   Now, I have looked at the papers.  I have looked at also the two previous files, which I understand are applications that you have previously made to the Court.  They are applications M52/1998 and M128/1999.  Are those applications that you had made?

APPLICANT M198/2004:   Yes, through my lawyers I have done that, your Honour.

HIS HONOUR:   Yes.  Well, now, as I say, I have looked at the papers.  What is it that you would now want to say to me about the current application, which is the application M198?

APPLICANT M198/2004:   Your Honour, first of all, like my M52 case, which was based on 417, and at that time I went through an organisation called Australian Council for Tamil Refugees, which was – we were trying to base on common grounds, not on my individual grounds which was based.  So it went on with about a group of 40 to 50 people, and they took initially my case for the courts, where it was dismissed.  So then I seek the next application, which was M128 of 1999, which based on similar sort of grounds on 417, as well as a few issues about RRT.  But I was telling my lawyers to look into my transcript as well as my decision, which was not a favourable one, but they did not take much notice about that.  Anyway, my High Court – it was remitted to Federal Court.

On the Federal Court I came to this Court and I felt the barrister, who appeared on behalf of me, did not – I felt to my knowledge, your Honour, that he did not have a proper claim which I was telling them.  Then after the decision was made, which was refused, and I again told my lawyers, “Please look into this matter”, where at the final stage they – we had this transcript done on the Refugee Review Tribunal as well as the department, which we provide an affidavit to you later on to amend the case, and the decision was refused.  I humbly tell you, your Honour, there is a lot of grounds in my matter regarding these claims.  Even if I talk about the Refugee Review Tribunal decision where it was made, which I had made a lodgement before the Refugee Review Tribunal, those claims against the decision of the department delegate was not looking at all at the Refugee Review Tribunal.

The questions were asked, just a few basic questions.  If you look at the transcript, your Honour, there is only a few questions, which are not much related with my – against decision of the department.  Then, again, most of the decision ‑ ‑ ‑

HIS HONOUR:   Now, just a moment.  You refer to looking at the transcript.  I am not sure that I have the transcript of the proceedings before the Tribunal, do I, in matter M198?  I think all I have, correct me if I am wrong, is your affidavit, which is the affidavit sworn on 17 November, and to that there is exhibited the decision of the Tribunal of March 1997, there is the letter of the Minister of December 1998 and there is the draft order nisi.  Is that right?

APPLICANT M198/2004:   Yes, your Honour.

HIS HONOUR:   Now, you want me in addition, do you, to look at the transcript of the Tribunal?

APPLICANT M198/2004:   Yes, if you looking to that ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, whether or not this would be the regular process, I rather doubt it is, but you have handed to me the transcript of proceedings firstly before Mr Vrachnas of Tuesday 11 March 1997, and there is an earlier transcript of Sunday, 26 September before the Tribunal member, Ms Rodriguez‑Orona.  Now, which part of the transcript do you want me to look at?

APPLICANT M198/2004:   If you looking on both the transcript, your Honour, I will give you one example to show how the decision badly was made.

HIS HONOUR:   Yes.

APPLICANT M198/2004:   In my initial application I have mentioned that I was taken to the custody by the police a couple of times.  In the delegate interview she had a lot of, first of all – if I am wrong – sorry, your Honour, with my English – first of all, she did not know, she did not properly read my initial application itself.  In few occasions she had a lot of doubts where she said – she is just asking a question, then said, “When I’m explaining the situation”, she said, “I’m really sorry.  Okay, okay”, where she agrees with me in few occasions.  Even in my arrest a couple of times, she comes with the same issue where she says, “You’re bringing a new claim” and then she says, “Okay”.  In my initial first interview I am clearly saying, according to the affidavit I have submitted on M128/1999 on the first page, fourth point ‑ ‑ ‑

HIS HONOUR:   This is your affidavit of 16 December, is it, of 1999?

APPLICANT M198/2004:   16 August 2004, regarding my amendment.

HIS HONOUR:   Just a moment then, let me find it.  Yes, I have that affidavit.  Which page or paragraph?

APPLICANT M198/2004:   On the first page of ‑ ‑ ‑

HIS HONOUR:   First page?

APPLICANT M198/2004:   Fourth point, your Honour.

HIS HONOUR:   Yes, I have that.

APPLICANT M198/2004:   And where I am just – even in the initial interview I am telling that I was beaten.  It is also mentioned in the transcript – it is also mentioned clearly that I have said that.

HIS HONOUR:   Yes.

APPLICANT M198/2004:   And later on, because she was not much clear, I did send a fax to her saying the same things that what I said, and also mentioning about that I was beaten.  When she took a decision she says in her decision that I am bringing a new claim that I was beaten, even though I was – I told her on the initial case and also in my submission that I am not mentioned that I was beaten – I said I had been arrested couple of times, your Honour, which is a common thing if you get arrested in Sri Lanka.  You cannot avoid just coming free out of the gaol without even getting a torture or something like that.

She had the decision based on my facts saying that I am bringing a new claim on that, that I was arrested and I was beaten, which is totally false.  If I go back to the Refugee Review Tribunal interview, which I wrote against my decision of the department, the questions – there were no main questions asked regarding my claims, your Honour, regarding my – against decision of the delegate, and he based on few different things.  He was focused on few things, and only few questions were asked, your Honour.  He also clearly made, based on the delegate’s decision – it came with that at the start itself – and he decided – and he also mentioned in his decision that I am bringing a new claim that I was beaten.  There were no questions asked in the Refugee Tribunal to explain this sort of a situation.  He is just mentioning in his decision that I am bringing a new claim that I was beaten.

If you look into the transcript and the questions that he has asked, Mr Vrachnas, he has not mentioned anything or any questions regarding these issues, but in his decision he is coming with – based on the department interview.  That is one thing, your Honour.  So that is one example I can tell you.  There are so many things that I can prove you with my claim, that I came here to Australia initially to claim refugee status and when I arrived within a month I just applied for my refugee status, where in their decisions they are saying that after coming here I thought of applying for a refugee status, thinking – I have prepared my documents through one of my agent back in Sri Lanka before coming to Australia to claim for the refugee status.

I have submitted documents, even if you are looking to my initial application, my documents, which some are dated before coming to Australia, my claims of my mother’s death certificate, the translation of my mother’s death certificate, my father’s death certificate and a few other things that I have submitted probably on 26 June 1996, before coming to Australia.  Anyway, there are so many claims I can prove you.  If you have had a chance of getting a barrister, I can explain the full situation to him.  That is one issue.

The other issue I wanted to tell you is, your Honour, since coming after 1996 my Refugee Review Tribunal decision was refused somewhere in 1997, and then I seek going to the courts.  Now, it is 2004; the long delay in this matter.  I can explain you the long delays in this matter, your Honour, if you give me a chance.  One is – can I go ahead?

HIS HONOUR:   Yes.

APPLICANT M198/2004:   One, we had a holding of a 435 visa, which was a temporary visa at that time when the Refugee Review Tribunal was made.  There was among everyone – a rumour was spread that everyone who holds a 435 visa will get a permanent resident visa.  So I never seeked to appeal to the courts at that time, but later on the Minister decided the people who came before 1993 will only be granted permanent residency, not after.

Then I had only option to go for a 417, even though I did not have much knowledge that I could go to a High Court.  Then I went on a 417, meeting up with local members of the Parliament and through them, and with my church organisations, which was later refused.  Then I seeked advice from this organisation called Australian Tamil Refugee where they, like me, there was few others – about a 50 to 60 group of Tamil Sri Lankan background people in my situation, where they took my case as a main case on 417, not on my common grounds, or not on my common Refugee Review Tribunal decision or anything else, which was later refused because I initially submitted another 417 to the Minister, where he refused the second one, and the court case was over.

Then later on, still I was with this Australian Tamil Refugee Council.  They helped me to put another application, which was M128 of 1999, again, which was remitted back to Federal Court.  At that time with my knowledge I thought they have looked into my whole matter in this case.  Then I was pretty happy.  But when I came to the Federal Court hearing on that particular day, where only my barrister had come, not the lawyer, because he had gone overseas, and the barrister just had only few things to say, I was very shocked and I was upset about it.  Later on I said, “Why didn’t you take this matter very clearly?”.  So that was the long delay in my own claim to bring to this Court, took such a long period.  At the end of this amendment that I was seeking was my main thing, you know, to prove that the Refugee Review Tribunal and the delegate was wrong, the only option, but, according to the law of Australia, it was not permitted.

But that was – honestly, if I am saying, it was not my fault even though – it was lawyer’s fault, your Honour.  Now, I am coming forward to you telling you to grant me a barrister.  That is all I have to say.

HIS HONOUR:   Just take a seat for a moment, and then there are some things I want to ask you, but just take a moment, for a start, would you?  Just take a moment.  The world will not stop instantly if we actually stop and take one moment.  Now, there are a couple of things I have to raise with you. 

First and foremost is this.  The role that the courts have in relation to Refugee Review Tribunal decisions is very limited.  The courts simply are not permitted to act as a general court of appeal to review the decisions made by the Tribunals.  The role of the court is limited by the legislation, by the Act, to ensuring that proper procedures have been followed.  The merits of the decision are the merits that have to be decided by the Tribunal, by the executive arm of government.  That distinction is not easy to understand – it is even harder to accept if it is understood.  That is step 1. 

Step 2 is this. This is the third set of proceedings that you have brought in the Court. I have, of course, heard what you have told me about the background that lies behind the other two proceedings; how, as I understand it, the first of them particularly, proceeding M52, was a proceeding which, using a neutral term, came out of work that was being done by the Australian Tamil Refugees Council. The second proceeding is one that focuses on the section 417 issue, but this is the third application. Is there anything else you want to tell me about why I should now let the third application go forward despite it being the third attempt? Take a moment. If there is something more you want to say, now is the chance, but take a moment first.

APPLICANT M198/2004:   I can proceed?

HIS HONOUR:   Yes, go ahead. 

APPLICANT M198/2004:   My Honour, like, these cases was with one solicitor.  His ideas and his focus was in one issue.  But with my third application, if you grant me an extension of time, I would seek legal aid or someone to explain my situation.  If there is a chance that my new claims have a real chance of going further, I will go.  That is the main issue, because it was with one barrister/solicitor, their ideas were there.  Even my ideas were not taken much into consideration even when I was telling them to look into the transcript.  Even if you check the transcript, it was dated very recently, not in the earlier stage.  So this is the first option, I feel, that I am going to act on behalf of my Refugee Review Tribunal and my immigration delegate case.  This is the first opportunity, because the further two applications which were lodged were based on something else. 

I spent a lot of time, your Honour, on looking into my case, reading it clearly, and listening to my cassettes and what I said, and I came to an understanding, from the start itself, that I got a lot of good claims in this which were not taken.  I thought my 417 was a good case, to my knowledge, that I would be granted and my second application, which was lodged and it was remitted, was also a good claim, to my knowledge, which was both there was no issues to argue which it was not arguable things.  Later, I seek to amend the case, 128, which was refused, which was, I felt, a good chance to explain my situation. 

Not only that, in my affidavit of M128/1999, I had so many other issues that I would have discuss with my solicitor regarding my case, but the lack of time, the money, everything is involved.  So this is my humble request, if you can let me speak to a legal aid barrister or someone and give

me a chance.  If I have a chance to prove, yes, otherwise you can give me a decision straight away, today itself.  So, your Honour, thank you.

HIS HONOUR:   Yes, thank you very much.

On 23 November 2004 the applicant filed an affidavit exhibiting a draft order nisi seeking relief directed to the Minister for Immigration and Multicultural and Indigenous Affairs and J. Vrachnas constituting the Refugee Review Tribunal.

The relief which the applicant would seek concerns what is said to be the decision of the Minister of 15 December 1998 not to exercise the power given to the Minister by section 417 of the Migration Act 1958 (Cth) to substitute for a decision of the Refugee Review Tribunal another decision, being a decision that is more favourable to the applicant.

As against the Tribunal, the applicant seeks relief in respect of its decision of 13 March 1997 affirming the decision of a delegate of the Minister that the applicant is not entitled to the grant of a protection visa. 

The particular relief which the applicant would seek against the Minister is mandamus, certiorari, prohibition and injunction.  Against the Tribunal he would seek the same kinds of relief.  It is convenient to deal separately with the proposed applications concerning the Minister and the Tribunal.

Against the Minister, the applicant seeks mandamus compelling him to exercise, in accordance with law, the power in section 417(1) of the Act to substitute a more favourable decision than the decision reached by the Tribunal. That application for mandamus must encounter the difficulty that section 417(7) provides that:

The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

The availability of mandamus to compel the Minister to exercise powers under section 417 was considered by the Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 of 2002 (2002) 211 CLR 441. It was there decided that mandamus was relief that could not be granted and it follows that if mandamus cannot go to compel the Minister to exercise the powers under section 417, any question of other relief, whether by way of certiorari, prohibition or injunction, falls away.

The question of other relief falls away because, in the absence of the availability of relief which would compel the Minister to exercise the powers under section 417, no purpose is to be served by interfering with what has already been done, even if what has already been done in respect of section 417 could properly be termed a decision.

Insofar as the applicant seeks relief in respect of what the Minister has done or not done in exercise of powers under section 417 of the Act, that application must fail.

So far as relief is sought against the Tribunal, it is to be noted that the decision of the Tribunal was made as long ago as March 1997.  The applicant recognises that the Rules of Court provide that where mandamus is sought, the application 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 Court or a Justice:  see Order 55 rule 30.

Insofar as the applicant seeks certiorari directed to quash the decision of the Tribunal, again he recognises that the Rules of Court provide, in Order 55 rule 17, that an order nisi for a writ of certiorari shall not 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 which it is sought to quash or within such shorter period as may be prescribed by law, subject always, of course, to the power of the Court to extend time.

The application which is now made is not the first resort by the applicant to judicial review in this Court.  In 1998 application was made in matter M52 of 1998 for prohibition, certiorari, mandamus or injunction directed to the Minister for Immigration and Multicultural Affairs.  In 1999 in matter M128 of 1999, the applicant again sought certiorari, mandamus, prohibition or injunction directed on this occasion to the Minister and to Mr Vrachnas as constituting the Tribunal.  Application M52 of 1998 was dismissed on 22 November 1999.  Application M128 of 1999 was dismissed on 21 October 2004. 

The bare recitation of those aspects of the procedural history of the matters does not, in the applicant’s submission, adequately record the facts and circumstances that lie behind the events whose dates I have thus indicated. In particular, in the course of oral submissions, he informed me that proceeding M52 was a proceeding instituted, in effect, as a principal or lead application of some 40 to 50 cases promoted by a group called the Australian Tamil Refugees Council concerning the exercise, or failure to exercise, of the Minister’s powers under section 417 in respect of a number of persons in broadly similar position to that of the applicant, namely, persons of Tamil ethnicity who were seeking protection visas in Australia.

Proceeding M128 of 1999, he informed me, was one which was based on grounds not radically different from those agitated in M52 concerning section 417 of the Act, but also broadening the inquiry to examine the decision of the Tribunal.

In proceeding M128 of 1999, after part of the proceeding had been remitted to and then dealt with in the Federal Court of Australia, so much of the order nisi as sought to review the exercise of ministerial power under section 417 was dismissed by consent on 26 February 2004. Thereafter, the applicant sought leave to amend the application to raise a number of more specific claims about the way in which the Tribunal had dealt with his application for review by that body. Leave to amend in the manner proposed by the applicant was refused on 21 October 2004 and it was at that point that the order nisi earlier granted was discharged with costs.

The applicant submitted this morning that the course of events which I have described has not permitted what he would regard as a proper examination of the complaints which he would make about the way in which his application for review by the Tribunal was dealt with by that body.  He would contend that the very specific complaints which he would make are complaints which have never been agitated in the courts and that what he now seeks is an opportunity to do that.

In aid of that opportunity, he indicated that he would wish to have further legal assistance, if that were possible, so that the matters which he considers constitute deficiencies in the way in which the Tribunal dealt with his case might properly be ventilated in the courts.

There are, in my opinion, two hurdles which lie in the applicant’s path.  First, he has now made two applications in this Court for relief.  If, as he now contends, those applications did not adequately raise the complaints which now he would make, it is, in my opinion, too late now by separate proceeding to attempt to agitate them.  The matters which he would seek to agitate include, perhaps they are limited to, the matters which were the subject of the application for leave to amend which was made in matter M128 of 1999 and refused. 

To the extent to which the application simply renews the attempt to bring those matters to the Court, it is properly to be regarded at least as an abuse of process and, for that reason, not to be permitted.  To the extent to which the matters which he would seek to agitate go beyond the issues which it was sought to raise by the amendment considered and determined on 21 October 2004, there is at least a serious question of whether now to attempt to raise them, without powerful reason explaining their earlier omission, would not itself properly be characterised as an abuse of process.

Apart altogether from these considerations which, by themselves, would, in my opinion, warrant refusing the order nisi which he now seeks, there remains the question of time.  The steps which he seeks by these proceedings to challenge are steps which occurred now several years ago.  Critical to the relief which he seeks in both cases is certiorari and mandamus, the time for the institution of such proceedings long since having passed. 

The time limits that are fixed by the Rules reflect the fundamental nature of the proceedings which he would seek to institute in the Court and the place that relief of this kind plays in the constitutional structure of Australia.

As I endeavoured to explain to the applicant, the role of the courts in undertaking judicial review of administrative decisions by the Executive arm of government is a limited role.  It is a role whose focus lies upon the lawfulness of what is done, rather than upon the merits of the particular decision that is reached by the Executive arm of government in the exercise of its power.

The intersection between the judicial branch of government and the Executive branch of government is therefore delineated finely.  Part of its delineation depends upon the fixing of time limits within which proceedings asserting that Executive acts have been done or threatened unlawfully are to be instituted.  Those times now having long since passed, that itself is reason compelling the conclusion that the application should be refused.

The intervention of the earlier two proceedings, which I have described, far from suggesting some reason to extend time adds further weight to the conclusion that the application must be refused.  Accordingly, the order is application for order nisi refused.

Now, sir, I shall return to you or have returned to you the two parts of transcript which you made available to me.  In the meantime, I shall adjourn until we establish the video link to Adelaide at 11 o’clock.

AT 10.21 AM THE MATTER WAS CONCLUDED