Applicants M123/2003 v Minister for Immigration - [2004] FMCA 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANTS M123/2003 v MINISTER FOR IMMIGRATION & ANOR

[2004] FMCA 180

MIGRATION – High Court application for constitutional writs, declaratory and injunctive relief remitted to the Federal Court and transferred to the Federal Magistrates Court – whether arguable case.

COSTS – Whether costs order against all applicants.

Muin v Refugee Review Tribunal (2002) HCA 30(2002) 190 ALR 601
Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 (Unreported decision of Marshall J 8 December 2003)
R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952) 1 All Eng LR 122
Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489
Somanader & Ors v Minister for Immigration & Multicultural Affairs & Anor (2000) 178 ALR 677

Applicants:

APPLICANTS M123/2003

Respondents:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

File No:

MZ 44 of 2004

Delivered on:

24 March 2004

Delivered at:

Melbourne

Hearing Date:

18 March 2004

Judgment of:

McInnis FM

REPRESENTATION

Pro Bono Counsel for the Applicants:

Mr M Belmar

Counsel for the Respondents:

Ms S Moore

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for order nisi is refused.
The applicants shall pay the respondents' costs fixed in the sum of $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 44 of 2004

APPLICANTS M123/2003

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

Respondents

REASONS FOR JUDGMENT

Introduction

In this application the Applicants had lodged an application for a protection visa on 28 February 1994. On 6 June 1995 the application was refused by the First Respondent’s delegate (the delegate’s decision). On 23 June 1995 an application was made to the Refugee Review Tribunal (the RRT) for review the delegate’s decision. On

4 April 1996 the RRT affirmed the delegate’s decision. On 14 May 1996 the applicant filed an application seeking judicial review of the RRT decision in the Federal Court of Australia. On 7 February 1997 consent orders dismissing the application in the Federal Court with costs.
In this application the applicants commenced proceedings in the High Court of Australia on 22 May 2003 seeking declarations for writs of prohibition or for an injunction or for orders in the nature of certiorari and sought to include an application for a writ of mandamus when the matter was heard before this Court.
It should be noted that by consent an order was made granting leave to the thirdnamed applicant to discontinue the application with no order as to costs.
This is one of a number of applications remitted by the High Court of Australia to the Federal Court of Australia. The applicants joined in representative proceedings in the High Court in an application which became known as Muin v Refugee Review Tribunal (2002) HCA 30(2002) 190 ALR 601 (Muin).
It is relevant to note that in the present case an order was made by Marshall J on 9 October 2003 in the following terms:
“1.The application for an order nisi and the hearing of return of the order nisi, if granted, be conducted as a single hearing.
2.The applicant(s) file and serve:-
(a) a statement of contentions of relevant facts and law setting out:
(i) particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought; and
(ii)if the applicant(s) require an extension of time in which to file this application, the reasons why an extension of time should be granted; and
(iii)if the applicant(s) has previously sought judicial review of the Refugee Review Tribunal decision the subject of this application, the reasons why res judicata or issue estoppel does not apply or why Anshun principles should not apply; and
(b) any affidavits which the applicant(s) intends to rely on at the hearing;
on or before 3 November 2003.
3.The directions hearing be adjourned to a date to be determined by the docket judge.
4.In the event that Order 2 is not complied with, the applicant(s) will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.
5.There be liberty to apply on two days' notice.
6.Costs be reserved.”
As there was no objection the Court permitted the applicants to rely upon the request for a writ of mandamus and otherwise noted that reliance was placed upon contentions of fact and law filed on 16 December 2003.
The applicants were represented by counsel before this Court and it is noted had been accompanied by an adviser in the proceedings before the RRT.
By way of background the primary applicant is a 39 year old Sri Lankan citizen. His wife and two young children are also Sri Lankan citizens who travelled with him to Australia in February 1994. They entered on visitor visas. The reason for the discontinuance of the application by the third applicant is that that applicant is now an adult who specifically instructed counsel that he wished to discontinue the application.
It is clear in the present application that reliance is placed upon a denial of procedural fairness and/or breach of natural justice on the basis that the applicant claims that no opportunity was given to consider or respond to country information relied upon by the RRT in reaching its decision. Reference made by the RRT in its decision to “other reports of human rights organisations” led to the further submission that those “other reports” whilst presumably read or considered or relied upon by the RRT were not disclosed to the applicants. It is claimed that the applicants were not aware of the “other reports of human rights organisations” at the time of the RRT hearing.
It is noted that without objection the respondent relied upon an extract from the RRT proceedings held on 4 April 1996 where at least the broad issue of the extent of violence and political situation in Sri Lanka had been referred to during the course of an exchange between the RRT and the applicant through an interpreter. Specifically the RRT is recorded to have said the following:-
“The Tribunal is aware that politics in Sri Lanka can be violent and that the last election campaign was a violent one. But I have not got evidence that there is overall sort of violence that is occurring all the time in relation to any political supporters, let alone people who are actually in parliament. Do you want to comment on that, just in terms of any – the situation at the moment?”
It is evident that the applicant does in fact comment thereafter as invited.
The RRT in its conclusion stated the following:
“Having considered the applicants claims both individually and on a cumulative basis, I conclude that his fear of persecution is not well founded. He is not a refugee. As the applicant is not a refugee within the meaning of the Convention, it follows that he does not satisfy the criterion for the grant of a protection visa that the applicant is a person to whom Australia has protection obligations under that Convention.”
It was submitted by the Respondent that the application should be dismissed and apart from referring to transcript where at least the broad issues were raised in relation to the country information, it was further submitted that in any event the country information was not of crucial importance to the RRT decision. Instead the RRT decision was based on findings that since the applicants had left Sri Lanka there had been a change in government and the election was won by the peoples alliance made up of a coalition in which the SLFP is the dominant force. Further the RRT stated that whilst the applicant was harrassed in the past because of his work for the opposition MP, the opposition MP is no longer an MP and that it noted that the applicant has not worked for the opposition MP or been involved in political activity for years. The RRT had also rejected the applicant’s claim that people had come looking for him after he had left Sri Lanka.
Even if the country information was found to be of critical importance it was further submitted that no material had been filed by the applicant which would show that the outcome would have been any different.

Relevant law

It is relevant to take into account in my view the decision of the Federal Court of Australia in Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 (Unreported decision of Marshall J 8 December 2003) (M115/2003). In that case, when dealing with the issue of claimed failure to give an applicant an opportunity to comment on country information before it made its decision, the court stated the following:-
“18 There is no indication in the reasons of the RRT that it gave the applicant an opportunity to comment on the country information before it made its decision. However, in the absence of any affidavit material from the applicant it is impossible to know whether it would have made any difference to his case if he had received prior notice of the country information referred to by the RRT.
19 As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at [37]:
‘Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’
20 In Lam, the Chief Justice said at [38]:
‘No practical injustice has been shown. The applicant lost no opportunity to advance his case. ...It has not been shown that there was procedural unfairness.’
See also per McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149].
21 Similarly in this case the applicant has not shown what he would have said if the RRT had given him the country information to comment upon, assuming (without knowing) that it did fail to do so. The applicant said, in his oral submission today, that he is currently unable to get information from Sri Lanka. That is not the point. The issue is what he would have said to the RRT prior to its decision being given in 1997 or what he would have done if he had been shown the relevant country information before the RRT's decision.”
It is also relevant to note the reference by Marshall J in M115/2003 to the issue of an extension of time where his Honour states the following:-
“9 The first question which arises under O 20 r 2 is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to file his application. I consider that it would be futile to grant the relief claimed against the first respondent. As Gray J said, in respect of a materially identical plea for relief in Re Batuwantudawa [2003] FCA 684 at [14]:
‘...the claim in the draft order nisi for prohibition is limited to the matter designated by its proceeding number in the Tribunal. The Tribunal has completed its dealing with that proceeding. There is nothing left to prohibit.’
10 The next question which arises is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to apply for certiorari. In that context it may be observed, as Gray J did in Batuwantudawa at [7], that no request is made for mandamus which might result in the redetermination of the application in the RRT.
11At [8] in Batuwantudawa Gray J said:
‘The time limited by the rules of the High Court for an application for certiorari is fixed by O 55 r 17 of those rules. An application must be made not later than six months after the date of the decision concerned. Of course, that is subject to the general power in O 60 r 6 of the High Court Rules to enlarge any of the time appointed by the rules. It falls to this Court to exercise that power of enlargement, if it is to be exercised, as a result of the remittal of the proceeding to this Court.’"
I accept that for the reasons given by Gray J in a case cited by Marshall J, namely, Re Batuwantudawa, that in this application the proceeding for an order nisi for prohibition cannot possibly succeed as having been the subject of an RRT decision, there is nothing left to prohibit.
I further accept that it is relevant in this case in considering the discrete issue of a claimed failure to give the applicant an opportunity to comment on country information, that as stated by Marshall J, a court is entitled to consider the absence of any affidavit material from the applicant and it is relevant to then conclude that in the absence of any relevant material, it is impossible to know whether it would have made any difference to the applicant's case if prior notice of country information referred to by the RRT had been given to the applicant.

I further accept that in this case it is appropriate for the Court to consider the general issue of whether any practical injustice has been shown.
It is important to remember that applicants seeking constitutional relief have an evidentiary burden to adduce evidence in support of the application. I note in particular the reference to Denning LJ in R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952) 1 All Eng LR 122 where he states at page 131 the following:-
“When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.”
I note and accept as applicable the decision of Kirby J in Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489 where in referring to a denial of opportunity to place material before the tribunal, his Honour states at page 501 the following:-
“Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.”

Reasoning

In my view the RRT in the present application did not specifically need to rely upon country information as a crucial factor to be taken into account in its reasons and for that reason alone the application would fail. In the alternative I am further satisfied that there is no evidence of a kind which would be appropriate applying the principles to which I have referred to persuade the Court that the outcome of the RRT decision would have been different had the applicant been given an opportunity to comment specially on country information.
I am otherwise satisfied that there is no arguable basis for the application and accept the respondents’ submissions that the applicant has failed to discharge the necessary evidentiary burden required in an application of this kind. Applying the principles to which I have been referred I am satisfied the applicant has not provided material of a kind which would enable the Court to grant the order nisi sought.
Arguments were advanced in relation to an extension of time and given my finding in relation to the lack of an arguable basis for the application, it is not necessary for me to consider the matter in further detail save that in the circumstances I was prepared to allow the application to be entertained and further prepared to permit reliance to be placed on an application for mandamus.
Although arguments were advanced in relation to Anshun estoppel it is my view that having regard to my current finding it is not necessary for me to decide that issue. I do note in passing the submission made that in matters of this kind where there has been a Federal Court application filed and by consent the application dismissed, that res judicata or issue estoppel may still apply notwithstanding the difficulties encountered by determining what had been necessarily decided (See Somanader & Ors v Minister for Immigration & Multicultural Affairs & Anor (2000) 178 ALR 677). I accept however that there are some difficulties in identifying the cause of action in question which ultimately needs to be determined by matters of substance rather than by the form of the particular proceeding or the way in which it is pleaded. It is not necessary for me to examine in detail the grounds relied upon before the Federal Court and compare those to the grounds now sought to be relied upon in any event as I have decided that there is no arguable basis for the application to succeed for the reasons given.
Accordingly it is appropriate that the application for order nisi be refused.

Costs

In the event that I were to make an order refusing the application for order nisi the respondents sought an order for costs against each and every one of the applicants, save for the applicant who has discontinued this application. Counsel for the Applicants submitted that the Court should only make an order against the Firstnamed Applicant that is the father and not make an order against his wife and child who is still a minor. The respondents submitted that in matters of this kind costs should follow the event against each and every applicant who should as a result of the costs order be jointly and severally liable as to do otherwise may impede the prospects of execution of an order for costs.
I am satisfied in applications of this kind where there are a number of applicants albeit members of the same family that it is appropriate to make a costs order that the applicants pay the respondents’ costs and the effect of that order is a joint and several liability of the applicants. I do not accept that as a matter of law the Court should exercise its discretion to make an order against only one applicant particularly where at least the first two applicants are adults and I do not further see any basis upon which the Court should resist making an order against the fourth applicant who is a minor.
Accordingly the orders of the Court will be as follows:
(1)The application for order nisi is refused.
(2)The applicants shall pay the respondents' costs fixed in the sum of $3000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 24 March 2004