Applicant S163-2003, Ex parte - Re MIMIA
[2003] HCATrans 716
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S163 of 2003
In the matter of -
An application for Writs of Certiorari and Mandamus and Prohibition and Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
THE SECRETARY OF THE REFUGEE REVIEW TRIBUNAL
Second Respondent
THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Third Respondent
Ex parte –
APPLICANT S163/2003
Applicant/Prosecutor
HEYDON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 14 MAY 2003, AT 9.33 AM
(Continued from 2/5/03)
Copyright in the High Court of Australia
__________________
MR I.G.A. ARCHIBALD: I appear for the applicant, if your Honour pleases. (instructed by John Sarroff & Company)
MR A. MARKUS: If your Honour pleases, I appear for the first and third respondents. Your Honour, I think I indicated on the last occasion that the second respondent, insofar as it is the Refugee Review Tribunal, would submit to and abide by any order of this Court. If the Court pleases. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, very well. Yes, Mr Archibald.
MR ARCHIBALD: With the consent of my friend, I would seek to hand up as an aide memoire a chronology and an amended draft order nisi and an outline of submissions.
HIS HONOUR: Yes, certainly.
MR ARCHIBALD: I have underlined the amendments on the order nisi.
HIS HONOUR: Right. There is one thing about this order nisi, the thinking now is, what, that this Court grants an order nisi and then remits it to the Federal Court?
MR ARCHIBALD: Yes, your Honour. That is in order 8 that I have put there.
HIS HONOUR: Order 7, I think.
MR ARCHIBALD: Yes. That is the outcome that the applicant seeks, your Honour.
HIS HONOUR: …..Justice Emmett rejected an application on 20 December based on the argument, as I understand, which underpins the current application for an order nisi. There seems to be an element of duplicity or doubling up. If the Federal Court has already rejected an argument for some reason or other, why should the same argument be put to it again in a second case?
MR ARCHIBALD: Your Honour, we would say that the rejection by Justice Emmett was wrong in that since the ‑ ‑ ‑
HIS HONOUR: If it is wrong, it should be appealed against. It should not be just brought, as it were, across to the High Court who send it back again. The time for appeal, of course, has lapsed.
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: Anyway, that is the order nisi. You do not oppose, do you, Mr Markus, the filing of this in Court?
MR MARKUS: Not of those documents, no.
HIS HONOUR: I grant leave to file the amended draft order nisi and the Court receives the chronology and the outline of submissions. Now, the affidavits you want to rely on are what? Do you wish to rely on the affidavit that was used on 2 May?
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: Do you have any objection to it, Mr Markus?
MR MARKUS: Yes, your Honour. In relation to that affidavit, I have objections to paragraphs 10 to 14 on the grounds of relevance only and I will deal with that in submissions perhaps later.
HIS HONOUR: You object to 10 to 14 on the grounds of relevance?
MR MARKUS: Relevance.
HIS HONOUR: Let me just have a look at that again.
MR MARKUS: The more, I suppose, substantive objections, your Honour, are to paragraphs 21 to 25 and 31 to 32.
HIS HONOUR: I think we are talking about different things. I was talking about this handwritten affidavit of 2 May.
MR MARKUS: I am sorry, your Honour.
HIS HONOUR: Is that the one you want to read, Mr Archibald?
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: Do you object to this handwritten one?
MR MARKUS: I am sorry, your Honour, I think I did not on the last occasion.
HIS HONOUR: No.
MR MARKUS: So I will not object to that.
HIS HONOUR: Well, that is read then.
MR MARKUS: I am sorry, your Honour.
HIS HONOUR: The next one is the one filed on 9 May?
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: I think that is the one, Mr Markus, you were directing your thoughts to. You said 10 to 14.
MR MARKUS: On the grounds of relevance. I am content with your Honour dealing with that objection in due course.
HIS HONOUR: Yes. I note that paragraphs 10 to 14 are objected to. Then, your next objection?
MR MARKUS: Paragraphs 21 to 25 and 31 and 32, your Honour.
HIS HONOUR: The objection to 21 to 25 is what?
MR MARKUS: Your Honours, it is a curious mixture of submissions and assertions of matters going to the ultimate fact to be determined by this Court, your Honour.
HIS HONOUR: Yes.
MR MARKUS: In relation to 31 and 32, they are, in effect, submissions as to the law. There is also objections as to relevance.
HIS HONOUR: Let us just take 31 and 32. Is not 31 completely irrelevant, Mr Archibald?
MR ARCHIBALD: Yes, your Honour. I am sorry, your Honour, I would not press 31.
HIS HONOUR: Right. And 32? That seems to be linked to Justice Emmett’s reasoning, again.
MR ARCHIBALD: Yes, your Honour. I will not press it.
HIS HONOUR: Very well. I have a little difficulty with your posture, Mr Markus, because if you take 10 to 14, if their admissibility is to be put on one side until address – they seem, in some ways, to be very similar to 21 and 22 because the theory seems to be that because Mr Sarroff has acted for many other Algerians before he knows that there is some material in the Department that was used in relation to them which was available here and presumably he goes on to say, “which was not before the Refugee Review Tribunal”. Now, on one view, that is all totally inadmissible. It is far too vague to be relevant.
MR MARKUS: I would say so, your Honour. That is the objection to the relevance. I mean, I do not quite understand how it, in effect, connects to any legal submission. There is a difference, in my submission, however, between the paragraphs going from 10 to 14 and commencing at 21. If your Honour looks at the paragraphs which are at 10 to 14, they assert, ultimately, that there is more material out there about Algeria than the decision‑maker, that is the Tribunal in this case, has specifically referred to in the decision.
HIS HONOUR: Yes.
MR MARKUS: Now, no doubt that is true. I do not quite see how it is relevant and how – I mean, as your Honour said, it is much too vague, but ‑ ‑ ‑
HIS HONOUR: Is this the distinction, that 10 to 14 just says there is more material about Algeria, but 21, for example, says there is a lot of material which has matters which are adverse to the applicant on which he was not asked to comment?
MR MARKUS: Yes, your Honour.
HIS HONOUR: But just at a technical level, is it not all equally admissible or inadmissible?
MR MARKUS: Your Honour, there is a conclusion drawn in paragraph 21 about material not properly identified which, in my submission, goes to the question of ultimate facts which your Honour needs to determine.
HIS HONOUR: Yes, all right.
MR MARKUS: That is the distinction ‑ ‑ ‑
HIS HONOUR: Yes. I need not hear you any more. Mr Archibald, paragraph 21 appears to be entirely speculative, if only because it asserts that there is material containing matters adverse to the applicant.
MR ARCHIBALD: Yes.
HIS HONOUR: How can the witness possibly say that or know that?
MR ARCHIBALD: Yes. I will not press it, your Honour.
HIS HONOUR: Paragraph 22 would seem to be in the same position.
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: Paragraph 23 perhaps does not matter much because that is just a piece of argument, so is that not pressed?
MR ARCHIBALD: Yes, it is not pressed, your Honour.
HIS HONOUR: Right. And 24 and 25?
MR ARCHIBALD: Yes, your Honour, the same. I am not pressing it.
HIS HONOUR: With those omissions as not pressed, the affidavit filed on 9 May of Mr Sarroff is read. Where do we go from there?
MR ARCHIBALD: Your Honour, there is a further affidavit which Mr Sarroff prepared yesterday which was, as I understand, faxed to the Court somewhat late and also purportedly faxed to the respondent.
HIS HONOUR: Yes. Did the respondent get it?
MR ARCHIBALD: The respondent received it, in parts, and since then, this morning, I have provided my friend with the parts of it that he did not receive and given to the Registry any parts that were missing.
HIS HONOUR: Have we an original affidavit that can be filed now?
MR ARCHIBALD: Your Honour, in relation to the original, Mr Sarroff is on his way to Court. He has had taxi problems.
HIS HONOUR: Perhaps we can do this: when he comes it can be filed so that the Court file will have a satisfactory copy.
MR ARCHIBALD: Yes.
HIS HONOUR: I will tell you what I have. We got a fax which says that there are 54 pages, plus a cover sheet.
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: I have actually got 58 pages. The last page says “58/64” and pages 55 to 58 are an affidavit of Nina Burridge, so that Mr Sarroff’s affidavits seems to end on page 54. So that is the one we are talking about?
MR ARCHIBALD: Yes, your Honour. I only seek to read Mr Sarroff’s affidavit. I do not seek to read Ms Burridge’s affidavit.
HIS HONOUR: Right. Now, Mr Markus, did you get hold of Mr Sarroff’s affidavit?
MR MARKUS: Your Honour, I have Mr Sarroff’s affidavit from page 7 onwards, which means that I did not have the body of his affidavit prior to coming to Court. I have had a quick look at it, your Honour. I certainly have not had an opportunity to properly check it, but I think on a quick perusal I would object to paragraphs 17 to 20.
HIS HONOUR: Yes. Let us just pause on those for a moment. You do not object to the rest, presumably, because it appears to be the annexing of what appear to be authentic documents.
MR MARKUS: That is what it appears to do, your Honour, yes.
HIS HONOUR: Right. Take paragraph 17 and 18. It is unintelligible, it seems to me, Mr Archibald:
The Applicant, had he been aware of the fact that the Department might not have physically transferred the evidence referred to in
paragraph 6 . . . to the Tribunal, or the fact that matters adverse were not brought to his attention.
It is supposed to run on, is it, to paragraph 18, “The Applicant would have made submissions”?
MR ARCHIBALD: Yes.
HIS HONOUR: So we read that as one paragraph?
MR ARCHIBALD: Yes, your Honour, that is correct.
HIS HONOUR: One problem with paragraphs 17 and 18 is it assumes that there were matters adverse which were not brought to his attention and that fact is not demonstrated or evidenced.
MR ARCHIBALD: That is correct, your Honour. It does assume that. They were included in a decision which was adverse to the applicant.
HIS HONOUR: What was included in a decision?
MR ARCHIBALD: If your Honour turns to page 28 of the affidavit, your Honour will see paragraph 6 entitled “EVIDENCE”. That page is part of the text of the delegate’s decision.
HIS HONOUR: Yes, in 1993. What is there which would lead one to conclude that that material is adverse to the applicant? I mean, the UNHCR Handbook on Procedures for Determining Refugee Status might in some sense be adverse to the applicant, but surely not in a relevant sense.
MR ARCHIBALD: Yes, I agree with that.
HIS HONOUR: It just does not establish that they were adverse. The documents are not before us and there is no summary of the documents which, if we jump over a few technical problems, might lead us to infer that if we could see the documents they were adverse.
MR ARCHIBALD: That is true, your Honour. Within the text of the decision your Honour will see certain references to some of the material, for example, on that page on the second paragraph.
HIS HONOUR: If your client is arguing…..if he had known certain things in 1999 he would have put certain arguments to the Refugee Review Tribunal, he must have known them because he must have read this in 1993, Ms Reitano’s decision.
MR ARCHIBALD: The applicant’s case is that it is the case that these particular documents were not transferred to the Tribunal.
HIS HONOUR: What does it matter, if the applicant was aware that they were relied on in 1993 and if the applicant contends that they are adverse to him? He knew of this material. If he wanted to say anything about it, he could have raised it. If they were not transferred to the 1999 Tribunal, that helps him. Your complaint I gather is that they were not transferred.
MR ARCHIBALD: Yes, it is part of our complaint, your Honour. Our complaint is that it is analogous to Muin where, whilst in Muin they were called Part B documents, the same fact occurred that in both cases the documents were not transferred. Part of the applicant’s case is that the applicant was advised that the Tribunal had considered all of the documents on his file or applicable on the papers and, relying on that communication from the Tribunal, the applicant failed to bring to the attention of the Tribunal matters which he thought the Tribunal had, some of which were beneficial to the applicant. That is part of the Muin Case, so at this stage that is the analogy that we draw.
HIS HONOUR: Just going to paragraphs 17 to 20, Mr Markus. Paragraph 20 would appear to be admissible. It may be injurious to the force of the affidavit.
MR MARKUS: I will put it this way, your Honour. I have some difficulty – it seems to presume that previous paragraphs of the affidavit established that it was not possible to communicate with the applicant. I do not think that the previous paragraphs of the affidavit so establish. It is certainly not clearly stated. If that is what the deponent of this affidavit wants to say, I want to cross‑examine him. It seems to flow on presuming that that is somehow established. In my submission, it simply is not.
HIS HONOUR: You object basically to the first 12 words of paragraph 20?
MR MARKUS: There is a reference to “information, knowledge and belief”. In relation to paragraphs 17 to 19, there is no indication about how the information, knowledge or belief may have been derived of, especially in light of the suggestion that it has not been possible to communicate with the client, which is not otherwise established, in any event.
HIS HONOUR: All right. Mr Archibald, do you have anything more to say to support the admissibility of 17 to 20?
MR ARCHIBALD: No, your Honour, other than that the solicitor was in Sydney since the last order and the applicant was in Perth in detention.
HIS HONOUR: That is no doubt true, yes. Anything else?
MR ARCHIBALD: No, your Honour.
HIS HONOUR: I reject paragraphs 17 to 20 of the affidavit of Mr Sarroff, affirmed at Sydney on 13 May 2003, but read the rest. I see Mr Sarroff is now here. Do we have an original?
MR ARCHIBALD: Yes, we do, your Honour. I hand it up.
HIS HONOUR: Perhaps you might just show it to Mr Markus.
MR MARKUS: Thank you.
HIS HONOUR: I grant leave for the filing in Court of the affidavit of 13 May of John Sarroff.
MR MARKUS: Your Honour, may I raise a very minor issue in relation to an affidavit which is not, strictly speaking, an objection, but is just a matter which my friend may or may not wish to deal with?
HIS HONOUR: Yes.
MR MARKUS: Can I just take your Honour back to the affidavit of 8 May.
HIS HONOUR: Yes. When you say the affidavit of 8 May ‑ ‑ ‑
MR MARKUS: By Mr Sarroff.
HIS HONOUR: ‑ ‑ ‑ you mean it was affirmed that day and filed the following day?
MR MARKUS: I am sorry, your Honour, yes. If I could just very briefly refer your Honour and my friend to paragraphs 5 and 7 because there appear to be references to two annexures numbered “C”, the second of which is not actually annexed. I am only mentioning it, your Honour, because ‑ ‑ ‑
HIS HONOUR: Yes. You see the problem, Mr Archibald. Paragraph 5 refers to an annexure “C”, allegedly received in June and it is dated 30 June according to page 16 of the affidavit, so it may well have been received in June or very soon after. Paragraph 7 speaks of receiving something marked “C” on 9 September. Now, there is no second “C”.
MR ARCHIBALD: Yes, I agree with that, your Honour.
HIS HONOUR: It did not strike me as being terribly important one way or the other but, if it is important, is there anything you want to add or any document you want to ‑ ‑ ‑
MR ARCHIBALD: I might have to just take instructions at an appropriate time on that.
HIS HONOUR: Yes, if you would. What about now because ‑ ‑ ‑
MR ARCHIBALD: Okay, excuse me, your Honour. Thank you, your Honour. I have it here, your Honour. It is simply ‑ ‑ ‑
HIS HONOUR: Do you want to tender it?
MR ARCHIBALD: Yes, I do seek to tender it, your Honour.
HIS HONOUR: Is the best thing to do to note that the letter referred to in paragraph 7 of Mr Sarroff’s affidavit of 8 May is the document of 9 September from the Refugee Review Tribunal to the applicant, which I now mark exhibit A?
MR ARCHIBALD: Yes, your Honour.
EXHIBIT A: Letter of 9 September from the Refugee Review
Tribunal to the applicant
HIS HONOUR: Is there any other evidence, Mr Archibald?
MR ARCHIBALD: No, your Honour.
HIS HONOUR: Any evidence, Mr Markus?
MR MARKUS: No, your Honour.
HIS HONOUR: Yes, Mr Archibald.
MR ARCHIBALD: Your Honour, as foreshadowed ‑ ‑ ‑
HIS HONOUR: I might just actually glance through your submissions.
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: In paragraph 2b of your submissions it refers to:
a paragraph numbered 6 on page 28 . . . to the affidavit of ‑ ‑ ‑
MR ARCHIBALD: Yes, that is what we just looked at.
HIS HONOUR: I see, yes. I have a general understanding of that. If it is convenient, perhaps you could structure your oral arguments along the lines of this outline.
MR ARCHIBALD: Yes, your Honour, I am quite happy to. In paragraph 1 I refer to my understanding of the test in relation to today’s application, being as stated by Justice McHugh in Re Australian Nursing Federation, namely:
an arguable case that the Tribunal to whose proceedings the writ is directed has gone beyond its jurisdiction.
The essence of this application is that the decision of the Tribunal did go beyond its jurisdiction for reasons of two things: most importantly, lack of procedural fairness; and secondly, non‑compliance by the Secretary of the Department, the third respondent, with section 418(3) of the Migration Act. If your Honour requires a copy of Muin ‑ ‑ ‑
HIS HONOUR: I have a copy of the Migration Act which is reprinted with amendments up to Act No 157 of 2001.
MR ARCHIBALD: Yes, that section stayed the same, so your Honour would be confident in referring to that section.
HIS HONOUR: Yes.
MR ARCHIBALD: I understand that it is accepted that the documents that we looked at in paragraph 6 on page 28 of Mr Sarroff’s affidavit were not sent by the Secretary to the Tribunal.
HIS HONOUR: Why do we understand that?
MR ARCHIBALD: Your Honour, the respondent forwarded to my instructing solicitor two files which ‑ ‑ ‑
HIS HONOUR: They are not in evidence.
MR ARCHIBALD: Yes, your Honour, I agree they are not in evidence. Perhaps I could ask my friend if that is conceded.
MR MARKUS: Your Honour, there is no evidence. My friend is asking me to make a concession which I have not as such considered making because there was no evidence put to it, but I have to accept that in the two files that I forwarded to my friend’s instructing solicitor there was no indication that the documents referred to on page 6 of the delegate’s decision were forwarded together with the file. That is, those documents were not on the file of my client.
HIS HONOUR: So, just to formalise it, you concede that two files located in the last week, being documents forwarded by the Secretary of the Department ‑ ‑ ‑
MR MARKUS: Your Honour, I have forwarded two files to my friend’s instructing solicitor. The first one was a copy of a departmental file numbered A92‑62889. If I could just elaborate on that, your Honour, that is the file that related to the original refugee status application of the applicant and his subsequent request for internal review. The second file I forwarded to my friend’s instructing solicitor was a copy of the file of the Refugee Review Tribunal numbered M99‑27183.
I think my concession really relates to the first file, which is the departmental record, which would have been forwarded to the Tribunal. The concession is that there was no evidence on that file that copies of the documents referred to in the decision of the delegate of the first respondent made back in 1993 were forwarded with that file and copies of those documents were not on the file.
HIS HONOUR: Thank you. Your submission, Mr Archibald, says in paragraph 2a:
it appears that a substantial part of the evidence on which the Delegate based her decision –
How do we know that that was a substantial part of the evidence?
MR ARCHIBALD: Your Honour, I am instructed that there was a conversation between the solicitors ‑ ‑ ‑
HIS HONOUR: I am not interested in instructions. The evidence is closed.
MR ARCHIBALD: Yes, your Honour. I do not think I can put it any higher than what the evidence is at this stage.
HIS HONOUR: You say that she said that “I had these ten or so items before me” and she said that she had them before her in reaching her decision and you point to the fact that, for example, at the bottom of page 27 of the affidavit she referred to the UNHCR Handbook on Procedures for Determining Refugee Status, which is one of the documents, and she referred a little higher up to the United States Department of State Country Reports on Human Rights Practices, which is one of the itemised pieces of material, and she refers to a Canadian publication called Information on Treatment of Berber Minority Group. Would you not have to demonstrate – this is building up to an attempt to fit within what Justice Gaudron said in paragraph [63] of Muin, I gather?
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: Namely, that we are supposed to conclude that the applicant had:
been misled into thinking that it was unnecessary to draw the Tribunal’s attention to the material that favoured his or her application –
If that is the inquiry, we have to find something in the documents that favoured the application. If we had the documents, we might be able to answer that question. All we have is the delegate’s summary or references to them and they either seem to be neutral or mildly adverse, so how can we say that they would have favoured the application?
MR ARCHIBALD: Your Honour, we cannot say that they would have favoured the applicant. However, there is the hypothesis or assumption that within that material there may have been material which would have favoured the applicant.
HIS HONOUR: Does that get us down to the end of 2c?
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: Justice McHugh seems to be dealing with a different type of point, namely that it is a breach of the rules of natural justice if the decision‑maker relies on adverse material without the party affected having an opportunity to deal with it. What is that material?
MR ARCHIBALD: If your Honour turns to the decision of the Tribunal, which is in the latest ‑ ‑ ‑
HIS HONOUR: That is…..annexed to Mr Sarroff’s affidavit of 8 May and it begins on page 18.
MR ARCHIBALD: Yes, your Honour. The submission of the applicant is essentially that this decision has scattered throughout it, particularly from page 6, a wealth of country information, going down to page 11 and, indeed, going on through to at least page 13 of the decision. A modus operandi by the decision‑maker where the decision‑maker comments on reports relating to political developments in Algeria, relying on news reports from Reuters and something called “CIS Source”, which appears to be downloaded from the Internet – that is at the top of page 7 of the decision. Then the US Department of State Country Report and, over the page on page 8, further Reuters business briefings and news reports.
On my analysis of the decision, nowhere in the decision is there recorded any account of these matters being put to the applicant for comment by the decision‑maker.
HIS HONOUR: It is not for the decision‑maker to do that, is it? Is it not for the applicant to say now that “that was not brought to my attention”? The decisions are against the applicant – this decision, at least, is against him. He has an onus of overturning it.
MR ARCHIBALD: An onus – I am sorry, your Honour?
HIS HONOUR: Of overturning it.
MR ARCHIBALD: Yes, he does have an onus of overturning it, that is correct. However, our submission would be that, following the Muin Case ‑ this was an important issue in the Muin Case ‑ ‑ ‑
HIS HONOUR: Can I just interrupt, because what is new about Muin is really the Justice Gaudron type of point we were looking at a moment ago. The Justice McHugh point is scarcely a new point, is it?
MR ARCHIBALD: I agree with that, your Honour, it is not a new point. It goes back to ‑ ‑ ‑
HIS HONOUR: Therefore from September 1999 to 2 May 2003 is a long period of time that has to be explained and the decision of Muin in August 2002 is not a means of explaining most of the delay.
MR ARCHIBALD: I agree with that, your Honour, and on that point – just before dealing with the delay, I will just address the McHugh point. In Muin, one of the quite important factors, particularly to Justices Gleeson and McHugh, was that between the time that the delegate made his or her decision and the decision of the Tribunal, the Department sent to the Tribunal some recent information from Indonesia and it related to, I think, President Habibie’s recent pronouncements on government policy and announcements by the army that it would protect a category of proposed refugee.
That material was essentially adverse – quite adverse – to the applicant. The applicant did not know it had been submitted and the applicant was not asked to comment on it. That underlines the judgments of Justices Gleeson and McHugh. Now, this case is not exactly like that because it is not necessarily a case where the Department or the Secretary seems to have, specifically, in relation to this case, given the Tribunal a wealth of new information. So I do make that distinction with Muin. However, in this case, a wealth of new information did become available in the lengthy period between the delegate’s decision and the decision of the Tribunal.
HIS HONOUR: By that, you mean the material on pages 6 to 11 that you referred to a moment ago? The country – yes.
MR ARCHIBALD: Yes. So the submission is that in these circumstances, where it is apparent on the face of the record that a wealth of new information has become available to the Tribunal and on the face of the record none of it is put to the applicant, the Court is entitled to conclude that there is an argument available for procedural unfairness.
HIS HONOUR: Yes, right. So it really boils down to three points. One is the Justice Gaudron point, that favourable material was not put to the Tribunal, because there were documents in the original decision that were favourable. The second point is that unfavourable material, recorded on pages 6 to 11 approximately, which either came into the Tribunal’s hands or was found out by the Tribunal on its own motion, was not offered for the applicant’s consideration. The third point is that ‑ ‑ ‑
MR ARCHIBALD: The Secretary point.
HIS HONOUR: Yes. What precisely is the evidence supporting the idea that the Secretary did not pass on all documents?
MR ARCHIBALD: Your Honour, it is the same evidence as the Gaudron point. I do not think I have any more to add on that, other than if ‑ ‑ ‑
HIS HONOUR: I see. Page 6 of the delegate’s decision in 1993.
MR ARCHIBALD: Yes.
HIS HONOUR: Right. Now, is there anything more you wanted to add to those three points?
MR ARCHIBALD: Only, your Honour, that in Muin several of the Justices mentioned that where there has been a long delay the requirement of placing the adverse material becomes enlarged. For example, on page 2 of my submission, Justice Kirby in my subparagraph i refers to that. At the top of that page, your Honour will also see that Justice McHugh also refers to the importance of this aspect after considerable delay. Essentially, your Honour, I have nothing further to add.
HIS HONOUR: Yes. Now, Mr Markus reminded us on the last occasion that there are time limits in relation to the seeking of orders nisi for prerogative writs. For example, Order 55 rule 17 says in relation to certiorari that the application should be made within six months of the date of the proceeding, that is, six months of September 1999. Your position is this. So far as the new part of Muin is relevant, delay is explained up to August 2002, from August 2002 to December 2002 getting ready for Justice Emmett and being rejected by Justice Emmett accounts for the time, and then in February and March 2003 Mr Sarroff had various illnesses.
MR ARCHIBALD: Yes.
HIS HONOUR: But what about the old part of Muin? Sorry, not the old part of Muin, the old part of natural justice that is discussed in Muin, but in respect of which the case did not change the law.
MR ARCHIBALD: When your Honour refers to the “old part” ‑ ‑ ‑
HIS HONOUR: What were Justice McHugh’s ‑ ‑ ‑
MR ARCHIBALD: Yes. Your Honour, the applicant, on the evidence of Mr Sarroff, as I understand it, took the decision not to appeal. I might endeavour to find the paragraph where that is ‑ ‑ ‑
HIS HONOUR: You mean, appeal against Justice Emmett or ‑ ‑ ‑
MR ARCHIBALD: Appeal against the Tribunal decision. Essentially, he ‑ ‑ ‑
HIS HONOUR: Yes, paragraph 26.
MR ARCHIBALD: Paragraph 26, is it, your Honour? Thank you, your Honour.
HIS HONOUR: Well, that does not explain delay.
MR ARCHIBALD: It does not explain the delay. As I understand it, the applicant was out in the community. He was working.
HIS HONOUR: But the applicant has a long history of trying by various means to try and stay in Australia. One attempt had failed by 1993 and then there was another attempt which involved formal applications being made in 1994 by reason of his working skills, and that seems to have failed over the next few years.
MR ARCHIBALD: Yes, that is correct.
HIS HONOUR: Then he belatedly, as it were, appealed against the delegate’s decision in 1993, and that was determined in 1999. Just because one is at liberty does not mean that the consequences of being an unlawful immigrant might not come home to one.
MR ARCHIBALD: I accept that, your Honour. Your Honour, I am not sure that I have any more to add.
HIS HONOUR: Yes, very well. Yes, Mr Markus.
MR MARKUS: Thank you, your Honour. Perhaps I could just start by correcting something that your Honour just said. In fairness to the applicant, it is not correct to say that he belatedly sought review of the 1993 decision.
HIS HONOUR: Yes, but they did not prosecute.
MR MARKUS: I think, your Honour, that the position was at the time – and I think Mr Sarroff addresses this in his affidavit in part – that he could lodge more than one permanent visa application or resident status application and the Department to my knowledge back at the relevant time, especially when the 816 and 818 visas were introduced, decided to process those visa applications first and they did not progress the protection visa applications or the equivalent applications which were piling up in the meantime. The 816 and 818 visa applications were, I suppose, preconditioned on their having been made the equivalent of a protection visa application.
So what in fact happened, your Honour, if I understand the position correctly, is that following the decision of the delegate, there was an application, what in fact was internal review. Internal review, your Honour ‑ ‑ ‑
HIS HONOUR: Internal view, not to the Tribunal, which did not exist in those days.
MR MARKUS: There was no RRT at the time. I may make some reference to the Migration Reform Act in due course, your Honour.
HIS HONOUR: The rough history is this, is it not? He comes in 1988. In 1992 he applies for refugee status. In 1993 he is interviewed and then in April the delegate refuses the application. He seeks internal review but nothing much seems to happen to that. From 1994 onwards there was an application to remain permanently in Australia and he was granted a class 830 permit pending determination of that permanent residence application by some date which I do not think is all that clear on the evidence. That application, as it were, finally failed in 1998.
MR MARKUS: It was a processing entry permit, your Honour, but it is irrelevant.
HIS HONOUR: Yes, I agree.
MR MARKUS: Could I perhaps hand up our chronology which is just a little bit more detailed. Again, your Honour, this is only by way of aide memoire. If I could just clarify the 21 May 1993 entry. Strictly speaking, those were internal review applications. The Refugee Status Review Committee – it was actually called RSRC – was a body established administratively which had recommendatory powers only. The ultimate decision was made by the review delegate or the Minister. The RSRC used to contain community representatives, various individuals from the Department of Foreign Affairs and Immigration, there were UNHCR representatives on the committee and so on. It was an advisory body only, your Honour, but usually it was referred to as the RSRC.
I only wanted to correct your Honour’s understanding of the facts because I think, in fairness to the applicant, he has originally applied for review. That review was not activated until his other application for permanent residence was finally determined.
HIS HONOUR: And then it, as it were, became transmogrified into the review application to the Tribunal?
MR MARKUS: That is correct. If I could start by making a brief reference to my friend’s argument regarding non‑compliance with section 418 of the Migration Act. I am not quite sure what the relevance of that argument is in light of the judgment of the majority in Muin and Lie because the majority in effect held that there was no relevant jurisdictional error involved in non‑compliance.
What is not established in this case in any event is that section 418 applies to this case. That is not established, your Honour, for two separate reasons. Section 418 was introduced originally as section 166BF by virtue of the Migration Reform Act. That provision did not commence until after the application for review by this individual. I am not aware ‑ ‑ ‑
HIS HONOUR: When you say “the application for review by this individual”, you mean the 1999 application?
MR MARKUS: There was no 1999 application, your Honour. There was an application ‑ ‑ ‑
HIS HONOUR: The Refugee Review Tribunal made a decision in September 1999. It must have done that in response to something.
MR MARKUS: Yes, your Honour. There was an application for internal review which became an application ‑ ‑ ‑
HIS HONOUR: Yes, but on 13 April the applicant was informed that the Tribunal had decided not yet to make a favourable decision to him on the information then supplied and they offered him an oral hearing. That 13 April letter would have been against a background that the Tribunal in effect had assumed jurisdiction over the applicant.
MR MARKUS: That is correct, your Honour.
HIS HONOUR: I am just trying to ascertain – you are advancing a sort of tight chronological argument based on dates. When you said that section 166DF did not commence until after the applicant’s application, on what date do you mean ‑ ‑ ‑
MR MARKUS: If I can take your Honour first to the provision of section 418 itself, that may make my point a little bit clearer. Subsection (1) of that provision states that:
If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
That just did not happen in this case and could not have happened because there was never in fact an application made to the RRT. There was an application made for internal review relating to a decision regarding refugee status. That subsequently, by virtue of the transitional provisions in the Migration Reform Act, became an application for a protection visa.
In 1994, pursuant to some regulations which were also transitional, applications for review which were not finally determined became in effect applications to the Refugee Review Tribunal for review. The point I am making, your Honour, is that subsection (1) clearly illustrates that section 418 simply does not apply to a case which came before the Refugee Review Tribunal by virtue of transitional provisions. Subsection (2) further illustrates that position.
The significance of subsection (3) is something totally different, your Honour, because, even if I am wrong in my submissions that section 418 simply does not apply to this case, subsection (3) provides that:
The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control –
and I emphasise the next words –
and is considered by the Secretary to be relevant to the review of the decision.
With respect, your Honour, in Muin and Lie there were various concessions of fact. For the purposes of that matter the concession was made regarding section 418(3). That is not the case here. It is not conceded that the documents referred to in a decision in 1993 are relevant to a review in 1999. There is certainly no evidence that the Secretary or the Secretary’s delegate considered them to be relevant.
HIS HONOUR: When you say the Secretary’s delegate, you mean who?
MR MARKUS: The relevant delegate is actually the decision‑maker usually. What happens in practice, your Honour, is that a decision is made by the delegate of the Minister but they also hold delegations under other provisions as delegates of the Secretary. It is usually the person who has made the decision as the Minister’s delegate who makes a decision about the relevance of documents for the purposes of the review.
HIS HONOUR: One point is that the delegate, Lyn Reitano, acted in April 1993. We just do not know whether – your point is perhaps this. In its standard operation, section 418 has an adverse decision followed speedily by an application for review. The delegate can do the job of the Secretary. The delegate will have fresh in mind what the documents are and the delegate can say, “These are all the documents that should be sent over to the Tribunal”. One problem is that about six years passed between the 1993 decision and its review in 1999.
MR MARKUS: Yes, your Honour, but the point I am really making here is that there is no evidence that the Secretary’s delegate considered those documents, that is documents that were referred to, six years earlier and which in effect reflected country information then held about this applicant’s country of origin to be relevant. In my respectful submission, they are not obviously relevant because the situation would have changed substantially in the ensuing six years, which is partly my friend’s point in respect of another argument.
What is most obviously relevant is the country information which is more recent. Ultimately the question which is to be decided on review is whether the applicant has a well‑founded fear of persecution for a Convention reason if returned to his country of origin now, not when he originally made the application.
HIS HONOUR: Can I just interrupt. The actual documents referred to in 1993 were presumably in the first of the two files that you were speaking about earlier.
MR MARKUS: Your Honour, what I was suggesting is that there were no copies of those documents on the file.
HIS HONOUR: I see.
MR MARKUS: That was the concession that I did make.
HIS HONOUR: That is right. Now, either those documents exist or they do not exist.
MR MARKUS: Well, the documents exist as such, your Honour. The country information report – I mean, I think, your Honour ‑ ‑ ‑
HIS HONOUR: I am just wondering, where are they?
MR MARKUS: Sorry?
HIS HONOUR: If they exist, do we know where they are?
MR MARKUS: Your Honour, we are talking about country information reports which are available. If I can take your Honour to page 28 of Mr Sarroff’s affidavit, the first document referred to is the copy of the file. Now, that clearly has been transmitted. Then there is a UNHCR Handbook on Procedures for Determining Refugee Status. That is a book, your Honour, and there are copies of it everywhere. Basically, delegates would have it, RRT members would have it, the RRT library would have it, and so on. The United States Department of State Country Reports on Human Rights Practices for 1992 is a document that is issued every year by the State Department of the US in relation to every country, and that is available on the web. There are hard copies of it.
These are fairly standard texts. They are the most often referred to general information in relation to countries. Now, Regional Surveys of the World: The Middle East and North Africa is, again, a book. It is published by Europa, it was published in 1992. The Political Handbook of the World, again, is a book. Information on Treatment of Berber Minority Group, Immigration and Refugee Board Documentation Centre, Ottawa, 30 October 1989 – that is a document created by a Canadian agency dealing with refugee applications and, again, that is a very available resource to which, these days, members of the RRT would have access through their computer. At the relevant time, they would have, I presume, had copies in the library or had other sort of access.
Algeria – Deteriorating Human Rights Under the State of Emergency, Amnesty International, March 1993, is an Amnesty International publication. It would not be a book, but it would be a publication by Amnesty International. Your Honour, what I am trying to point to is that I cannot say where these documents are, because there would be copies of them everywhere. I mean, these are commonly available resource materials.
HIS HONOUR: I see. Is this a possibility, that the delegate in 1993 examined this material, but may not have collected it all into one particular place, may have just examined it for the purposes of this decision?
MR MARKUS: He would have had ‑ ‑ ‑
HIS HONOUR: Is it he or she?
MR MARKUS: ‑ ‑ ‑ his or her own library, in effect, which is a general library and then individual decision‑makers would have had copies, especially if they regularly dealt with applications from a particular country. They would have had, say, a folder which said Algeria, and that would have contained various information sources. Now, some delegates at the time – because this is quite a normal decision – would have taken copies of that material, although clearly not all the books and the like, and they may have placed it on the file, but not all delegates did, and this particular delegate did not.
HIS HONOUR: We know that, because the departmental ‑ ‑ ‑
MR MARKUS: We know that because there are no copies on the file.
HIS HONOUR: Yes, right. A92‑62889, yes.
MR MARKUS: We know that there has been no copy placed on the file of those documents.
HIS HONOUR: Right. Anything more on 418?
MR MARKUS: No, your Honour.
HIS HONOUR: Right.
MR MARKUS: Your Honour, my friend’s next two points, if I understood him correctly, relate to allegations of denial of procedural fairness or natural justice. The first point under that heading is an allegation that there was favourable information contained in the material referred to by the delegate in 1993 and that that favourable material was not taken into consideration by the Refugee Review Tribunal member or the Tribunal when making his decision. I think my friend stopped there.
Now, your Honour, there is a number of difficulties with my friend’s argument. The first is that he has not identified the favourable material. The second is that he has not referred to any evidence demonstrating that that material was not taken into account. The third is that, in any event, that in itself is not sufficient. He has to go on to demonstrate that the applicant did in fact believe that that favourable material would have been taken into account by the Tribunal and then would have to go on and demonstrate that, if he knew that it was not, he would have taken steps to bring that material to the Tribunal’s attention.
Now, there is no evidence of any of those things, your Honour, none. In relation to the adverse material point, as your Honour noted, this is not really a Muin and Lie argument at all.
HIS HONOUR: So we have shifted from Justice Gaudron ‑ ‑ ‑
MR MARKUS: Just for a moment, your Honour. I am just saying ‑ ‑ ‑
HIS HONOUR: Yes, very well.
MR MARKUS: ‑ ‑ ‑ there is nothing, no evidence, in support of that point.
HIS HONOUR: I understand the arguments, yes.
MR MARKUS: Your Honour, there are similar difficulties, but perhaps before I do go on, I should just do one thing. I should give your Honour a reference to a judgment of the Full Court of the Federal Court. If I could hand up two copies of this judgment. I have just given my friend a copy as well. Your Honour, the judgment I am referring to is a judgment of their Honours Spender, Moore and Kiefel, given on 18 September 2002. The name of the matter is NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293.
If I could just very briefly refer to the judgment of her Honour Justice Kiefel, who delivered the principal judgment in the matter, because following Muin and Lie there are a lot of applications where reliance is attempted to be placed on the High Court’s judgment, because individuals believe that somehow, independently of the actual facts of the case, there is some principle that emerges from the judgment which means that all of the decisions made at around the relevant time by the Refugee Review Tribunal somehow suffer from the sort of irregularity that has been established, following on the factual concessions made by my client, in those two cases. Now, if I could just ask your Honour, rather than reading this out, to look at paragraph 25 to 29.
HIS HONOUR: This is an authority you rely on in relation to the last point, in other words, the theory that if there were material favouring the application the applicant was misled into thinking it was unnecessary to draw the Tribunal’s attention to it?
MR MARKUS: Yes, your Honour. What I derive from this judgment ‑ and, your Honour, I would also refer to another Full Court judgment called NADD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 275, which is a judgment of their Honours North, Mansfield and Downes, and there are lots of other judgments to similar effect – is that you actually have to put the relevant evidence before the court. You cannot just say, “This is what Muin and Lie says and I fit into this”.
You have to establish what the favourable material or what the adverse material is; you have to establish by evidence that there was some misrepresentation; you have to establish that you actually believed something to be the case and that belief was wrong and that in your mistaken belief, which has been induced by the misrepresentation, you have acted to your detriment. Now, your Honour, I do not need to refer to the decisions of the Federal Court because it is plainly obvious from the judgment of the High Court that that decision is made in the face of the concessions that have been made by the Minister in that case.
HIS HONOUR: All right. Now, you were going to deal with the theory that there was adverse material – deal with the argument.
MR MARKUS: Yes, if I could just very briefly go to that point. I think your Honour has already made the point that this is not a Muin and Lie point. This really has nothing to do with Muin and Lie because my friend does not rely on the decision of the delegate in any sense other than saying it was a long time ago. What my friend says is that the RRT has referred to a number of documents containing country information and because of the passage of time the Tribunal was under a particularly onerous obligation to draw adverse material to the applicant’s attention. He makes a very vague suggestion to the effect that the decision does not record that this in fact has occurred.
Your Honour, again, there is absolutely no evidence about a number of matters. First, there is no evidence that the substance of this material was not put to the applicant. There is evidence to the contrary, however, in the sense that we do know that there has been a hearing in relation to this matter and we do know from the evidence of Mr Sarroff himself that some of the country information material in any event has been referred to. He so says at paragraph 20 of his affidavit affirmed on 8 May and filed on 9 May.
There are two things that need to be remembered in any event, your Honour. The first one is that it is not the actual documents that need to be given to the applicant. That is not, in the face of this sort of material, the relevant requirement. The principles of natural justice simply require that the applicant be given an opportunity to deal with the substance of matters which are adverse to his or her interests. In fact, if one examines the decision of the Refugee Review Tribunal, there are not that many findings which are directly made adverse to the applicant.
The applicant’s story is not rejected on credibility grounds, as such. The Tribunal ultimately forms the conclusion that even though the applicant would be regarded as somebody who had evaded military service for many years, there was no real risk of any persecution on a Convention ground if returned to Algeria now.
I do not know, your Honour, what exactly was said at the interview but there was a hearing and there is no evidence that these matters or the substance of these matters have not been put to the applicant. There is no evidence that somehow this material came as a terrible shock to him when he saw the decision. What your Honour is faced with is a generalised allegation that there may have been material that favoured the applicant and was not considered and that there may have been material which was adverse to the applicant and which may not have been put to him. With respect, your Honour, that is simply not sufficient for the purposes of establishing an arguable case.
Your Honour, just very briefly I should note that the draft order nisi or the amended draft order nisi seeks various orders which are clearly
inappropriate in any event. I do not know whether your Honour wants to hear me on that.
HIS HONOUR: I think we might put that on one side for the time being. Is there anything you want to say about the delay? As I understand it, the rules require that applications for certiorari be brought within six months of the proceeding complained of. Is there any other rule ‑ ‑ ‑
MR MARKUS: Mandamus is two months, your Honour. It is Order 55 rule 30.
HIS HONOUR: Yes.
MR MARKUS: We would say, your Honour, that prohibition would not issue – prohibition or injunction would not issue in the absence of certiorari or mandamus.
HIS HONOUR: Yes.
MR MARKUS: Your Honour, the only thing I really want to say about the delay is that if your Honour thought that this was a particularly strong case then your Honour would not be too concerned about the delay because of the nature of the application.
HIS HONOUR: Yes, but your argument is it is a particularly weak case.
MR MARKUS: Yes, it is anything but a particularly strong case. There is significant delay and there are discretionary reasons why your Honour would not ‑ ‑ ‑
HIS HONOUR: I think your position is correct, if perhaps slightly diluted. If it were a case, then delay would be excused, but if it were not a case, then delay does not arise.
MR MARKUS: I would…..
HIS HONOUR: Yes, thank you, Mr Markus. Mr Archibald, what would you like to say?
MR ARCHIBALD: Your Honour, just on the point as to what the majority in Muin decided, just on the Part B procedural fairness point, the headnote says that ‑ ‑ ‑
HIS HONOUR: I am working off the Australian Law Reports. Are you working from them?
MR ARCHIBALD: Yes, I am, indeed, your Honour. On the second page of the headnote, held at (i):
Per Gaudron, Gummow, Kirby, Hayne and Callinan JJ (Gleeson CJ and McHugh J dissenting): In M’s case, there was a failure to accord procedural fairness in relation to the Part B documents –
That did accord with my understanding of the case, that the essence to be distilled was that the mere failure by the Secretary to deliver the documents to the Tribunal did not of itself have the effect that there was procedural unfairness. The procedural fairness aspect related to the assumptions that the applicant had in the belief that material was with the Tribunal, and particularly the Gaudron point as to beneficial aspects of that material.
HIS HONOUR: Are you running the section 418 point as a separate point or merely as a component, as it were, of the reasoning of Justice Gaudron?
MR ARCHIBALD: I think the answer to that may well lie in whether ‑ ‑ ‑
HIS HONOUR: I think there must be a sense in which – let us say the Secretary was in breach of 418(3) in that he thought that some matters were relevant but they were actually highly adverse the applicant, the failure of the Secretary to pass them on would then be beneficial to the applicant. I am not speaking of this applicant, just a postulated applicant. The postulated applicant could never get an order nisi on that ground alone. It would be necessary to show that the documents withheld might have helped and in that sense, as you are just indicating, the 418 point and the Justice Gaudron point tend to merge into each other.
MR ARCHIBALD: Yes, I agree with that, your Honour. The respondent made a point that the applicant has not identified the favourable material and has not demonstrated it was not in any way taken into account. The applicant accepts that it has not at this stage identified the favourable material. However, the applicant, in my submission, has had some practical difficulties in that these proceedings arose at very short notice. The applicant was the subject of administrative action to remove him from Australia and the material is not in the file. So my submission is that an inference should not be drawn against the applicant on those two submissions.
Secondly, my friend made a comment as to the fact that there is no evidence that the applicant had a belief that any favourable material had been taken into account. My submission, your Honour, is that there is evidence that the applicant was advised that the Tribunal had looked at all the material relating to the application, and that is annexure “A” to the affidavit of Mr Sarroff of 8 May.
HIS HONOUR: Just one minute.
MR ARCHIBALD: It was also repeated, your Honour – your Honour will see that there in the first paragraph of that letter in the text.
HIS HONOUR: Yes, I see that.
MR ARCHIBALD: Also, if your Honour looks at annexure “C”, being the letter of 30 June, again:
The Tribunal has looked at all the material relating to your application –
So that is the basis for a reasonable belief that that material referred to in paragraph 6 had been looked at.
Your Honour, my friend then brought your attention to the case of NADR and drew the analogy of this case to that. The first submission I would like to make in relation to that is that NADR appears to be a case where, as your Honour will see perhaps at the first sentence of paragraph 27:
In the present case the first decision was made in March 1999.
So it seems to be a much more recent set of circumstances, your Honour. I have not read the case in detail, but it appears to be quite a different case to this one where there is this considerable delay and then there is what appears to be quite a degree of extra information that was provided and in the decision there is no itemisation of what that material was, other than in the text of the decision. There is just a series of comments or findings by the Tribunal referring to a diversity of information. My submission is that it would be important that the Tribunal did record the responses of the applicant to that material.
My submission is that, as I said, there is a wealth of information that permeates that decision, substantial quotations and it occupies a large proportion of the text of the judgment and the Court is entitled to have a serious concern about the extent to which this material was put to the applicant. It is not a vague suggestion. It is apparent on the face of the decision that there is no record of what the responses of the applicant were. My submission is it is reasonable for the Court to assume that essentially it was not put to the applicant – the substance of that material was not put to the applicant.
My friend appears to be relying on a double negative, that is, there was no evidence that it was not put. My submission is that looking at the text, the balance of probabilities would entitle the Court to conclude that it was not put. That, in the circumstances of this particular case, must raise a serious concern. I have nothing further, your Honour.
HIS HONOUR: Yes, thank you, Mr Archibald.
The applicant applies for the issue of orders nisi in relation to the decision of the Refugee Review Tribunal which, in the event that the orders are not granted, will have the result that he will be removed from Australia to Algeria. The evidentiary materials before this Court, though not complete, reveal the following history. On 20 June 1988 the applicant, who was a citizen of Algeria and a Berber, arrived in Australia. His contention has been that he fears persecution on the ground of his ethnic background on his return to Algeria.
On 20 February 1992 the solicitor for the applicant, who is the solicitor who has acted for the applicant at all material stages, sent to the Office for the Determination of Refugee Status certain applications for refugee status and for a domestic protection (temporary) entry permit. After an interview on 24 February 1993 a delegate of the Minister refused the application on 29 April, or thereabouts, 1993.
On 21 May the applicant applied to the Refugee Status Committee for review of the decision to refuse the grant of refugee status. That review was in the nature of internal review. On 26 May 1993 he also applied to the Refugee Status Committee for review of the decision to refuse the grant of a domestic protection (temporary) entry permit. On 4 July 1994 the applicant applied for subclass 816 (Transitional Permanent) visa. On 20 October 1995 there was a determination refusing to grant the applicant a subclass 816 visa.
Over the next three years attempts were made to review that decision which, from the applicant’s point of view, failed. In 1999, in particular on 13 April 1999, the applicant was informed that the Refugee Review Tribunal, which had, since the decision of the delegate in 1993, been created and which was embarking upon a review of the delegate’s decision in 1993, was not minded to make a favourable decision on the information supplied to them but the applicant was offered an oral hearing which he accepted on 27 April. The oral hearing took place on 11 August 1999 but on 23 September 1999 the Tribunal affirmed the decision of 1993.
The relief sought is in the nature of prerogative writs. Order 55 rule 17 of the High Court Rules requires an order nisi for a writ of certiorari to be applied for within six months after the date of the relevant proceeding, and one of the paragraphs of this order nisi is of that character. Since the original application for order nisi was filed on 2 May 2003, it is obviously many months out of time when considered in the light of the fact that the Tribunal’s decision was on 23 September 1999. Similarly, there is a two‑month period stipulated by Order 55 rule 30 in relation to mandamus.
Time can be enlarged under Order 60 rule 4. The applicant has advanced various considerations relevant to an enlargement of time. One is that in part his application rests on the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 which was only decided on 8 August 2002. Another is that the solicitor for the applicant saw no way of furthering the interests of the applicant until that case came to his attention. He then filed a Federal Court application relying on Muin’s Case which Justice Emmett dismissed on 20 December 2002. In the period January to March 2003 the solicitor has had some quite serious health problems which involved at least three weeks absence from work.
The position of the first and third respondents was that if the Court were of the view that there was a strong case on substantive grounds for the grant of an order nisi the delay could be excused but if the case was not strong it should not be excused and, indeed, if the case was not strong the orders should not be granted. I think that is a correct approach to the problem. In short, if an order nisi would have been granted if an application had been filed within time, there is no reason why the delay should stand in the path of the applicant’s success.
The arguments advanced on behalf of the applicant can be divided into three parts, although the first two parts of the argument, in a sense, interlock. The first point advanced turned on section 418(3) of the Migration Act which provides that the Secretary of the Department must, as soon as is practicable after being notified of the application for review to the Refugee Review Tribunal, give to the Registrar all documents in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
It was conceded by the respondents that though the departmental file A92‑62889 was forwarded to the Tribunal, it did not contain certain documents referred to by the delegate in her decision in 1993 which appear in paragraph 6 and headed “EVIDENCE”.
The applicant argued that the Court ought to infer that the documents before the delegate which had not been transferred to the Tribunal were favourable to the applicant. The submission in form did not rise above the proposition that it is not possible to conclude that they did not favour the applicant and that a conclusion should be drawn that they may have done so.
The second part of the argument relied upon a statement made by Justice Gaudron in Muin’s Case at paragraph [63] to this effect:
a reasonable applicant for review who had been informed that the Tribunal would look at the Department documents along with other evidence on the Tribunal file and, later, that the Tribunal had looked at “all the material relating to the application” would have been misled into thinking that it was unnecessary to draw the Tribunal’s attention to the material that favoured his or her application in the Part B documents referred to in the original decision and would have refrained from so doing.
Attention was directed to the fact that on 13 April 1999 the applicant was told that the Tribunal had looked at all the material relating to his application and to the fact that that statement was repeated in a letter of 30 June 1999.
The third head of argument advanced by the applicant was advanced by reference to a statement by Justice McHugh at paragraph [123] of Muin’s Case to the effect that natural justice requires that a person against whom a decision may be made should be given an opportunity “to deal with adverse information that is credible, relevant and significant to the decision to be made”.
The applicant here drew attention to the fact that in pages 6 to 12 of the Tribunal’s decision there are references to events and conditions in Algeria that to a large extent appear to rest on material which could not have been available to the delegate in 1993, for example, material obtained from Reuters, material obtained from the United States Department of State Country Report on Human Rights for Algeria in 1998, and other relatively contemporary material coming from other sources, including the Internet.
The applicant stressed that the time that had passed between 1993 and 1999 was considerable and pointed out that in various passages in the authorities, the need for disclosure by the delegate of the potentially adverse material to be relied on was stronger where there had been considerable delay and where circumstances may have changed. Reference was made to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, particularly at paragraphs 134, 225, 228, 229, 256, 257 and 306 to 308.
The respondents responded to these arguments in the same order as that in which they had been advanced. Underlying all the respondents’ arguments was the point that Muin was in effect a decision in which the Department had been interested in obtaining a ruling of law and in which various factual concessions or various agreements as to facts were propounded, in relation to which the Court arrived at its conclusions. Apart from the concession relating to file A92-62889 and related matters, there was no equivalent material in this case.
In relation to section 418, the respondents contended that subsection (3) could not apply because subsections (1) and (2) could not apply. The reason why those subsections could not apply was that this was not a case where the delegate had made a decision and then a relatively speedy application for review was made to the Refugee Review Tribunal. Rather, the delegate’s decision had been made before the Refugee Review Tribunal came into existence. Section 418 itself did not come into existence until after the delegate’s decision. By virtue of transitional provisions, the applicant’s agitation of discontent with the delegate’s decision, after other proceedings had been taking place in the years 1994 to 1998, led to the Refugee Review Tribunal taking over the task of review without the precise language of section 418 ever being engaged.
The respondents argued that, even apart from that, section 418(3) did not apply. The respondents drew attention to the concluding words of the subsection, namely the reference to documents that were:
in the Secretary’s possession or control and [were] considered by the Secretary to be relevant to the review of the decision.
The respondents argued that it had not been shown that the 1993 documents referred to in paragraph 6 of the delegate’s decision were relevant to a review of that decision in 1999. The documents themselves were not in evidence and no inference could be drawn that they were relevant.
It was further submitted that there was no evidence that the Secretary or any delegate of the Secretary in fact considered the documents to be relevant. It was submitted that the documents were not obviously relevant because the situation could well have changed in Algeria in the intervening six years. The respondents also pointed out that the documents were probably widely available.
Turning to the second of the heads on which the applicant relied, the respondents contended that it was not possible to rely on the statement of principle made by Justice Gaudron for the following reasons. First, there had been no identification of any material which was favourable in the sense used by her Honour. Secondly, if there was any favourable material, there was no evidence showing that it had not been taken into account in 1999. Thirdly, even if there were favourable material which had not been taken into account, it was necessary for the applicant to show that he believed that the Tribunal would have taken it into account and also to show that if he had thought it was not being taken into account he would have taken steps to bring it to the Tribunal’s attention.
The respondents relied on a decision, NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293, particularly at paragraphs 25 to 29, where Justice Kiefel, with whom Justices Spender and Moore agreed, analysed closely the distinction between the factual deficiencies in the NADR Case and the factual position in Muin’s Case.
The third head of the applicant’s argument was dealt with by the respondents as follows. First, the point was made that there was nothing novel in the principle propounded by Justice McHugh. Then it was said that the duty was not to show the detail of the documents to the applicant in the course of the Tribunal’s hearings, but only to put the substance of the material. It was contended that there was no evidence that the substance of the material had not been put to the applicant.
The applicant was represented by Mr Sarroff, his solicitor, as I have indicated, at all material times over the last 10 or 11 years. Mr Sarroff, in paragraph 20 of his affidavit of 9 May 2003, said:
I recollect that from time to time during the course of the hearing, the Tribunal asked the applicant to comment on certain aspects of the Country Information which it held.
The respondents submitted that that was some evidence that the material on pages 6 to 12 of the Tribunal’s decision may well have been put to the applicant and his solicitor. The respondents pointed out that, unlike many refugee cases, this was not a case where the applicant’s story had been rejected on credibility grounds and, in that sense, the decision of the Tribunal did not contain many findings adverse to the applicant.
The respondents also submitted that there was no evidence that the material had shocked the applicant when he saw the decision. In effect, they submitted that from that could be inferred the proposition that the information in question was not in truth adverse in the sense described by Justice McHugh.
In reply, counsel for the applicant accepted that, in a sense, the first two parts of the argument tended to march in step and ought to be treated as the same, in the sense that the section 418 point would not be likely to succeed unless the documents which had not been transferred to the Tribunal were documents favourable to the applicant. There had been a failure specifically to identify favourable material, but that was attributed to the difficulties under which the applicant has been labouring by reason of having been detained.
In relation to the respondents’ submission that the applicant was obliged to show that he believed that the Tribunal had taken the material into account, material in the two letters referred to earlier to the applicant was pointed to, and it was submitted that that was a basis for a reasonable belief that the totality of the material available to the delegate had been looked at by the Tribunal.
Next, the applicant submitted that the NADR Case appeared to involve a much shorter interval of time between delegate decision and Tribunal decision than was the case here. It was submitted that since the Tribunal had not reported or recorded any responses advanced on behalf of the applicant to the material appearing on pages 6 to 12, the Court was entitled to infer that in truth there had been no responses, and that the reason there had been no responses was that the substance of the material had never been put to the applicant.
I can follow the parties by dealing with the three limbs of the argument in turn. I should preface what follows with these words. There is an onus on the applicant to establish a serious question sufficient to justify the grant of orders nisi and, in effect, the reference of the matter to the Full Court. At least the third part of the argument advanced, if good, has been available ever since September 1999. The second part of the argument advanced has been available ever since Muin’s Case.
The matter came before the Court urgently on 2 May, when the applicant succeeded in obtaining an interlocutory injunction until today restraining the respondents from removing him from the country. The orders made on that day granted liberty to apply in the event that there were difficulties in obtaining from the respondents documentary materials which the applicant might wish to have in order to advance today’s hearing. That liberty to apply has not been availed of and the concession made by the respondents about two files recorded in the transcript indicates that there has been co‑operation between the parties in that regard.
The section 418 point is one which can be dealt with without deciding on the merits of the respondents’ contentions in relation to section 418(1) and (2). The respondents’ contentions in relation to subsection (3) appear to be sound. It is necessary, at the rather limited level I have earlier indicated, for the applicant to demonstrate that there were documents in the Secretary’s possession relevant to the review of the decision and documents which were considered by the Secretary to be relevant to that review.
The actual documents, though identified in paragraph 6 of the delegate’s decision, have not been tendered. It is not, in my judgment, possible to infer that they were favourable. Accordingly, the argument, so far as it was advanced independently on subsection (3), fails.
So far as the argument which relied on Justice Gaudron’s statement in Muin is concerned, again, there is the difficulty that no favourable material has been demonstrated. There is obviously some force in what counsel for the applicant said about the problems which the applicant presently has in dealing with litigation, but there has been a great deal of time in the past when those problems could have been dealt with. Even in the last 10 days, it would have been possible to ascertain whether the material which was before the delegate in 1993, which has not been forwarded to the Tribunal in 1999, was favourable.
If the respondents had an onus of showing that the material had been taken into account, they would no doubt fail in bearing it, but it is the applicant who has an onus of showing that the material was not taken into account. Given that up‑to‑date country information was taken into account on pages 6 to 12 of the 1999 decision, the possibility that within that information the 1993 information was included has not been excluded.
There is no evidence that if the applicant knew that the material referred to in paragraph 6 of the 1993 decision had not been taken into account in 1999 he would have been wishing to take any particular steps to draw it to the Tribunal’s attention. A further matter is that given the fact that the applicant was not placed in detention until early 2002 and the fact that he has had a solicitor, and the same solicitor, acting for him both in relation to the 1992‑1993 proceedings and the 1999 proceedings, it has not been established that the material referred to in the 1993 decision, if thought to be significant, could not have been referred to in 1999. In short, the conduct of proceedings over the years suggests that the point is one which has only formal merit, so far as it has any merit, or that in truth the material in question was not favourable to the applicant’s cause.
As to the question of whether the applicant was given an opportunity to deal with the substance of adverse material, what happened at the hearing before the Tribunal in August 1999 has been dealt with in general terms in Mr Sarroff’s affidavit of 9 May 2003. The applicant has failed to exclude the possibility that in truth the materials set out on pages 6 to 12 were put to the applicant and his solicitor. There is no evidence as to what the applicant might have wished to say about the material on pages 6 to 12, on the assumption that it was not, in fact, put.
I conclude that the applicant has failed to demonstrate that in truth there was no opportunity to deal with the relevant information. Accordingly, I would refuse the application for orders nisi.
Is there any other matter that needs to be dealt with?
MR MARKUS: Yes, your Honour. The first and third respondents seek costs of the application, your Honour.
HIS HONOUR: Mr Archibald?
MR ARCHIBALD: Your Honour, the applicant would not oppose the costs.
HIS HONOUR: You do not oppose it?
MR ARCHIBALD: No, your Honour. There is a matter that is of concern and that relates to, as I understand it, the applicant may have some further rights and, hence, I seek to raise the possibility of a stay for a short period of time for the applicant to consider his position. I do not have particular instructions on what an appropriate duration might be.
HIS HONOUR: Mr Markus, what does the immediate future hold?
MR MARKUS: Your Honour, I do not have those instructions. Your Honour, I think, is aware that the applicant has been transferred to Perth but I did not make any specific inquiry as to what, if any, arrangements have been made for his removal.
HIS HONOUR: It is not really a stay, is it? Is it not an application for an extension of the injunction?
MR ARCHIBALD: Yes, it is.
HIS HONOUR: How long for?
MR ARCHIBALD: Perhaps 21 days.
HIS HONOUR: Twenty‑one days?
MR ARCHIBALD: Or 14, your Honour.
MR MARKUS: Your Honour, I oppose the application period. I certainly oppose 21 days, but what we say about the extension is that the stay was granted for a specific purpose.
HIS HONOUR: No, I think the interlocutory injunction was granted for a particular purpose from 2 May until today.
MR MARKUS: Yes, I am sorry, your Honour. That is the interlocutory order was granted for a specific purpose. The extension is now sought for a totally different purpose and the arguments in support of a stay, in my submission, are bound to fail, in effect, on your Honour having refused the order nisi.
One of the questions that arise in any application for a stay, and in my submission in any application for an extension of previous orders, is whether there are such prospects to warrant the exercise of the discretionary power available to your Honour being exercised in the applicant’s favour. Now, in my submission, your Honour having decided that the applicant had failed to identify a serious issue to be tried such as to warrant the granting of an order nisi in circumstances where the granting of the order nisi in itself of course involves the exercise of discretionary power and, if I understand my friend correctly there, any further rights would require the applicant to obtain leave to appeal from your Honour’s judgment.
In my submission, the prospects of success of any such application, let alone the appeal, are so remote that your Honour would not exercise any power your Honour may have to extend the time or to make further interlocutory orders in the applicant’s favour.
HIS HONOUR: Yes. Mr Archibald, what you want is an extension of the injunction?
MR ARCHIBALD: Yes, your Honour.
HIS HONOUR: What are you intending to do in the time which would be available if it were extended?
MR ARCHIBALD: Your Honour, essentially take instructions and consider the possibility of an appeal, or an application for leave to appeal to the Full Court.
HIS HONOUR: Yes. Let us just put that on one side. The precise orders that should be made, apart from that, would be:
(1) That the application for the order nisi in the form of the amended draft order nisi is dismissed;
(2) That the applicant pay the costs of the first and third respondent; and
(3) Certify for counsel.
The problem, Mr Archibald, is that it takes nearly a year for special leave applications to be heard, so you are asking for an injunction for nearly a year. Why should your client have 300 days, or 30 days or three days more time in view of the delays that have taken place since 1999?
MR ARCHIBALD: Your Honour, certainly one of the reasons which the applicant would advance is the obvious one which is the balance of convenience argument.
HIS HONOUR: The balance of convenience on one hand – we have an applicant here who is being paid for by the government. The government will never be able to get the costs of maintaining the applicant back. The government will never be able to recover the costs against the applicant. Your client has been in – not all the time, but has been here since 1988 without firm legal rights to be here.
MR ARCHIBALD: Yes, that is true, your Honour, but, effectively, if he goes to Algeria his possibility of maintaining – as I would understand it, the possibility of maintaining the action, as it were, may well be severely curtailed. I do not have precise instructions as to the possibility of communications to Algeria or precisely what the circumstances would be, but my submission would be that there would be an almost overwhelming inability to conduct such a case from Algeria.
HIS HONOUR: I do not know the difficulties would be any greater than conducting them from a place of detention here.
MR ARCHIBALD: The other possibility may be, your Honour, that given that the applicant is in detention and has been in detention for some 12 months that there may be some capacity in the Court to either advance the hearing of consideration for a special leave application or, alternatively, there may be some possibility of an agreement between the parties whereby the applicant is allowed back into the community on agreed terms, becomes a productive member of the community pending hearing of the special leave application.
HIS HONOUR: I cannot order that any such agreement be made. I think that it would be necessary to demonstrate some serious prospect of success.
MR ARCHIBALD: Yes. What I actually had in mind was essentially not such a lengthy extension, perhaps a shorter period of time in which the applicant might consider his position and either then take it back either on a preliminary basis on the special leave application or perhaps back to your Honour for further consideration.
The concern is, your Honour, that this is an applicant who may well be on a plane tonight to Algeria. In those circumstances, the submission is that it is reasonable, given that this is a case that has involved a close consideration on both sides and the application to some extent of a case that is relatively recent from the High Court, that the comments by my friend as to early judgments on prospects for success may perhaps be somewhat early and it may be appropriate at least for the applicant to give some thought to that before his position in relation to that possibility might be decided. On that perhaps shorter time frame, my submission would be that the balance of convenience favours the applicant remaining here.
HIS HONOUR: Mr Markus, what would you say to an order that before any removal of the applicant you give three days notice to Mr Sarroff or the applicant?
MR MARKUS: I oppose that, your Honour. I oppose it for a number of reasons. There may be already arrangements made regarding the removal of this applicant – I do not know. That, in itself, in any event would simply invite further applications, your Honour. The fact is that this particular applicant has come before this Court on 2 May with an application for urgent interlocutory relief, which was granted only on the basis that whilst they have not been able to identify a serious issue to be tried on the day that the time between that day and the hearing date, which was in fact extended from what was originally asked for, would be used for the applicant to make further inquiries so that argument can be prepared along the lines of the judgment of Muin and Lie.
The whole purpose for the making of those interlocutory orders were limited to enable the applicant to properly prepare the application for today. In my submission, if the applicant today asks for an extension of the original orders, it is incumbent upon him to demonstrate that he has sufficient prospects on any application for special leave or for leave to appeal from your Honour’s judgment.
HIS HONOUR: I suppose it is leave to appeal, strictly speaking, yes.
MR MARKUS: It is leave to appeal, not special leave, your Honour. That meets the relevant test. You do not even get to balance of convenience, your Honour, because, in my submission, there is absolutely no prospects of this applicant getting leave to appeal from your Honour’s judgment. If I can put it this way. Your Honour has said nothing particularly new. There is no serious issue. Your Honour applied the facts of this case to well‑known principles. Once that is accepted, in my submission, the applicant’s application should be refused.
Your Honour, strictly speaking, there was never a proper proceeding before this Court. My client is entitled to the fruits of the success that it has had in circumstances where the applications for a substantive visa of this applicant were finally resolved in 1999. This is 2003. The applicant has been given an opportunity to seek to challenge the decision that was made in 1999. He has been unsuccessful. My client ought to be able to act in accordance with the clear intention of the Migration Act which expressly requires my client under section 198 to “remove as soon as is reasonably practicable” from Australia somebody who is in the position of the applicant.
HIS HONOUR: Yes. Just one thing you said I did not quite understand. You said there never was a proper proceeding before this Court.
MR MARKUS: Your Honour, all I meant – I only said…..the ex parte procedure because after your Honour actually grants an order nisi there is, strictly speaking, no procedure and there is no parties and whatever.
HIS HONOUR: So, strictly speaking, if an order nisi were granted, you would apply to me or a single Judge to have it dissolved if there was an ex parte order?
MR MARKUS: I could, yes. This is an unusual case, your Honour, because there was an application made for a stay, together with the order nisi application, and your Honour has granted that stay and I notice that Justice Hayne has done exactly the same thing. No, Justice Hayne did not do the same thing, he did something different, but dealt with the matter on the basis that he had the power to grant a stay a couple of days before your Honour dealt with this application.
I do not know whether your Honour had looked at that case, but it seems that my client, even though never strictly speaking a party to the order nisi application, nevertheless had orders made against him on the first occasion. But, your Honour, I am digressing ‑ ‑ ‑
HIS HONOUR: Yes. Is there anything you wish to add, Mr Archibald?
MR ARCHIBALD: Briefly, your Honour. My friend put forward a basis that an extension would be an invitation to appeal. My submission is that is not a basis for opposing an extension. My first submission would be that there may be some possibility on a special leave application in that this involves how far does the Muin Case go? It is a somewhat unique set of facts but my submission is that the Muin Case is still being worked through. There are other plaintiffs in the wings, as it were, each of whom has a different set of circumstances and perhaps a ‑ ‑ ‑
HIS HONOUR: The Court hears 50 to 60 appeals as a result of grant of special leave or leave, there is just a limit to – and that is a factor relevant to the chances of success.
MR ARCHIBALD: Yes. I have nothing further, your Honour.
HIS HONOUR: Right. I should add to what I have said before the following. The respondent has objected to paragraphs 10 to 14 of Mr Sarroff’s affidavit of 8 May. I reject those paragraphs. There has been argument about whether or not there should be an extension of the interlocutory injunction which is to expire today for a period of indeterminate length. One suggestion of the applicant was that it should be extended for 21 days. Another suggestion is that it should be extended until the hearing of an application for leave to appeal from the orders which I will shortly make.
The applicant’s position is that if he is removed to Algeria it would be difficult for him to prosecute any application for leave and any appeal from Algeria. Since in Algeria he will be at liberty but he is not at liberty here, I am not sure that is a forceful argument.
If the application for leave were to take its place with pending applications for special leave, it could not be heard until November or December this year. The respondents point out that in 1999 the Tribunal in effect terminated the applicant’s hopes of remaining in this country. No step was taken against that decision until the proceedings before Justice Emmett, heard and decided on 20 December 2002. Proceedings were started in this Court on 2 May 2003 and an injunction, according to the respondents, one which there was arguably no jurisdiction to grant, was granted in order that the applicant could assemble materials with a view to a hearing today. The injunction sought was for seven days. The injunction granted was for a somewhat longer period.
The respondents point out that is incumbent on the applicant to demonstrate sufficient prospects of success in any application for leave to appeal, and in the appeal, and they submit there are no such prospects of success. They further point out that nothing in the reasons that I endeavoured to express earlier stated anything new but that the reasoning simply applied well‑known principles to the facts of the case.
In all the circumstances, I would not propose to extend the injunction further. I therefore make the following orders:
(1) The application for the order nisi in the form of the amended draft order nisi filed in Court today is dismissed;
(2) The applicant is to pay the costs of the first and third respondents of these proceedings;
(3) I certify for counsel.
The Court will now adjourn.
AT 12.22 PM THE MATTER WAS CONCLUDED
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