Calado, Mateus v Minister of State for Immigration and Multicultural Affairs

[1998] FCA 871

FEDERAL COURT OF AUSTRALIA

MIGRATION - application to file notice of appeal outside prescribed time - whether special reasons for granting leave - issues to be raised about the power of the Court under s 481 Migration Act 1958 and whether Court may limit matters to be considered by the Refugee Review Tribunal on remittal in relation to an application for a protection visa.

Migration Act 1958 - ss 411(1)(c), 415(2)(a), 481
Federal Court Rules O 52 r 15(2)

Jess v Scott (1986) 12 FCR 187, cited
Waterhouse & Anor v Deputy Federal Commissioner of Taxation (1986) 86 ATC 4639, cited

MATEUS CALADO v MINISTER OF STATE FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 523 OF 1998

JUDGE:         MOORE J
PLACE:         BRISBANE (HEARD IN SYDNEY)
DATE:           23 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 523  of  1998

BETWEEN:	MATEUS CALADO APPLICANT
AND:	MINISTER OF STATE FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MOORE J
DATE OF ORDER:		23 JULY 1998
WHERE MADE:		BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. Leave is granted to file and serve the notice of appeal on or before 4 pm Monday 27     July 1998.

1. The costs of the application for leave be the costs in the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 523 of 1998

BETWEEN:	MATEUS CALADO APPLICANT
AND:	MINISTER OF STATE FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	23 JULY 1998
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

This is an application under O 52 r 15(2) of the Federal Court Rules by Mr Mateus Calado for leave to file and serve a notice of appeal against a judgment of Tamberlin J of 19 December 1997.

The background against which the application is made may be stated briefly.  The applicant arrived in Australia on 4 April 1997.  He made an application for a protection visa under the Migration Act 1958 (“the Act”) which was refused by a delegate of the Minister. The applicant sought a review of that decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal made a decision on 4 September 1997 affirming the decision of the delegate. This gave rise to an application under s 476 of the Act seeking judicial review in this Court of the decision of the Tribunal. That application led to the judgment of Tamberlin J of 19 December 1997.

It appears from the reasons for judgment of Tamberlin J that the applicant was or may have been a citizen of Angola.  He had claimed he was a refugee as defined in Article 1 of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  He contended that his fear of persecution related to reasons of race, religion and political opinion.  Tamberlin J concluded that there was no reviewable error demonstrated in relation to the Tribunal’s consideration of persecution on grounds of religion and political opinion.  However his Honour formed a different view in relation to the applicant’s contention that he had a well founded fear of being persecuted for reasons of race and the consideration of that issue by the Tribunal.  His Honour concluded that its consideration by the Tribunal disclosed a reviewable error of law.  This led to orders being made in the following terms:

1. The decision of the Refugee Review Tribunal on the question of persecution on the grounds of race be set aside.

   2. The matter be remitted to the Refugee Review Tribunal for determination in accordance with law on the question of persecution on the ground of race.

   3. The respondent pay the applicant’s costs.

By virtue of order 2, the circumstances of the applicant came to be considered by the Tribunal again.  It decided on 15 April 1998 that it was not satisfied that the applicant was a refugee and it affirmed the decision not to grant a protection visa.  In its reasons the Tribunal canvassed the circumstances of the applicant in relation to both his contention that he had a well founded fear of persecution for reasons of religion and political opinion as well as race.  However in that section of the Tribunal’s reasons which constituted its substantive reasons for decision, its consideration was limited to the issue identified in the order of Tamberlin J, namely persecution for reasons of race.

The application for leave to file and serve a notice of appeal outside the prescribed time was accompanied by a draft notice of appeal.  The relevant part of the draft notice provided:

1. The appellant appeals from the judgment and orders of Justice Tamberlin given on 19 December 1997 in matter NG771 of 1997, to the extent that:

   (a) His Honour found no reviewable error in the decision of the Refugee Review Tribunal in relation to the appellant’s claims based on religion and political opinion; and

   (b) His Honour ordered that the decision of the Refugee Review Tribunal be remitted to the Tribunal for determination only on the question of persecution on the ground of race.

   GROUNDS

   1. His Honour erred in law in finding that there was no reviewable error in respect of religion or political opinion.

   2. The function of the Refugee Review Tribunal is to determine the question of whether Australia has protection obligations in respect of an applicant pursuant to the Convention and Protocol on the Status of Refugees.  In considering all matters of fact the Tribunal as constituted in a particular case cannot be bound by findings of fact made by a differently constituted Tribunal.  His Honour therefore erred in law by making an order remitting only part of the fact finding process to the Tribunal for reconsideration.

   ORDERS SOUGHT

   3. That the judgment of Tamberlin J of 12 December 1997 [sic] be set aside.

   4. That the decision of the Refugee Review Tribunal in respect of the appellant, given on 4 September 1997, be remitted to the Tribunal for full reconsideration in accordance with law.

The power conferred by O 52 r 15(2) may be exercised when a judge is satisfied there are special reasons for granting leave to file and serve a notice of appeal outside the time prescribed by O 52 r 15(1)(a).  The relevant principles were canvassed by the Full Court in Jess v Scott (1986) 12 FCR 187 though the Court ultimately made plain at 195 that the expression “for special reasons” gave rise to a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. The Full Court did identify as a relevant consideration the time that had elapsed from the time in which the appeal should have been filed in accordance with the rules. In this matter both counsel accepted that I should consider the issues sought to be raised in the appeal, the prejudice that might be occasioned to each party by the refusal or grant of leave and the explanation by the applicant for the delay.

As to the last matter the applicant relied on an affidavit of his solicitor, Mr Jones, who deposed to a conversation Mr Jones had had with the applicant.  Mr Jones speaks Portuguese and his conversation with the applicant was in Portuguese.  Having regard to observations in the reasons for judgment of Tamberlin J, the applicant’s grasp of English is limited.  In the conversation with Mr Jones the applicant had said that after having argued his case before Tamberlin J in person he was pleased to hear later that his case had been sent back to the Tribunal.  He said to Mr Jones that he then believed that he would be able to put his whole story again to the Tribunal and have his case listened to and decided on its merits.  He went on to say that when the case went back to the Tribunal he did not understand that the member thought she was only able to consider his claim to fear persecution on the ground of race.  This evidence was admitted without objection.

The Tribunal canvassed with the applicant during the hearing following the judgment of Tamberlin J matters that might have been seen to relate to his fear of persecution on grounds other than race. Indeed the Tribunal in its reasons published on 15 April 1998 noted that he had raised with Mr Calado his claims as including a claim that he was a Jehovah’s Witness and had been recruited into the army despite objecting on religious grounds.  The Tribunal records in its reasons that this and other claims identified by it were accepted by the applicant and his representative as having been accurately summarised by the Tribunal.  This process could well have led to or confirmed a belief in the applicant that his status as a refugee would be considered on all grounds by the Tribunal when giving effect to the orders of Tamberlin J.

Counsel for the Minister pointed out that in probably early January 1998 efforts were made to secure legal representation for the applicant though, it must be accepted, they did not bear fruit and the solicitor who was then approached had no personal contact with the applicant. It is unlikely that this contact would have led to the applicant understanding the effect of the orders of Tamberlin J. However counsel for the Minister also pointed to the fact that a migration agent represented the applicant during the second hearing before the Tribunal culminating in its decision on 15 April 1998. It could be expected that the migration agent would have had a good working knowledge of the Act and migration procedures: see s 290 of the Act. However no attempt was made by either party to prove whether the migration agent was aware of the legal effect of the order made by Tamberlin J. It is likely that any knowledge or understanding on the agent’s part of the legal effect of the orders would have been manifest in the submissions made to the Tribunal. While one would have expected the agent would have known of the order of Tamberlin J and its effect on the scope of the Tribunal’s inquiry, it is conceivable that he or she did not or, if they did, did not inform the applicant of it.

It is plausible that in the circumstances I have just recounted the applicant would have believed that his application for a protection visa was being considered again by the Tribunal on grounds other than the limited ground identified in the order of Tamberlin J.  I am satisfied that the applicant held a mistaken belief about the effect of Tamberlin J’s order until he spoke to his present solicitor on 14 May 1998 and that much of the delay between the time of his Honour’s judgment on 19 December 1997 and the filing of the application to extend time on 2 June 1998 are explicable on this basis and the explanation is a reasonable one.

The prejudice to the applicant if leave is not granted is manifest in the sense that any claim he might have to a protection visa based on a well founded fear of persecution for reasons relating to religion or political opinion have been exhausted save to the extent that changed circumstances might permit the making of a fresh application: see s 50 of the Act. Counsel for the Minister submitted that prejudice to him should be considered and reference was made to Waterhouse & Anor v Deputy Federal Commissioner of Taxation (1986) 86 ATC 4639 in which Fox J had noted in relation to an application for an extension of time to seek a review of a decision of the Commissioner:

The prejudice to the respondent is rather that of an authority which has the responsibility for collecting tax and to this end obtaining relevant information from taxpayers.  The present applicants have apparently already occupied a considerable part of the time of the taxation authorities and it can be said that the public through them has suffered some prejudice by their failure to comply with a notice.  I say this because it can be too readily thought that a public authority does not really suffer ‘prejudice’ in the relevant sense.  I think that is wrong, at least in a case such as the present.

The point made by counsel for the Minister was that a similar prejudice would be occasioned by an extension of time in this case.  That is, further departmental time and public monies would be expended in dealing with the applicant’s claim.  Moreover, at least potentially, departmental time and public monies would have been wasted by the second hearing of the Tribunal whose decision of 15 April 1998 would be clouded by legal uncertainty if the appeal was to proceed and all the more so if the applicant was successful.

While I accept that this is so, there appears to me to be a public interest consideration in resolving at least one aspect of the issues foreshadowed in the appeal which could, in due course, ensure that departmental time and public monies were directed to dealing with applications for protection visas and their review, including judicial review, with a greater measure of certainty while the existing statutory regime, including s 481 of the Act, continues. The powers of the Court under s 481 of the Act when reviewing a decision of the Tribunal are, relevantly:

481     (1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

(a) an order affirming, quashing or setting aside the decision, or part         of the decision, with effect from the date of the order or such earlier           date as the Court specifies;

(b) an order referring the matter to which the decision relates to the          person who made the decision for further consideration, subject to      such directions as the Court thinks fit.

(c) . . .

This mirrors the language of s 16(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”).

I do not have before me the first decision of the Tribunal, that is, the decision of 4 September 1997. It was described by Tamberlin J as “a decision which affirmed a decision of a Ministerial delegate refusing a protection visa”. The power exercised by the Tribunal derived from s 415(2)(a) of the Act which enabled it to “affirm the decision” which would, relevantly, have been a decision to refuse to grant a protection visa: see s 411(1)(c) of the Act. In my opinion there is scope for the view that the power to set aside a “decision or part of the decision” in s 481(1)(a) does not include a power, in a case such as the present, to preserve the Tribunal’s adjudication on only one or a number of the aspects or elements of the definition of refugee and nullify its adjudicating on other aspects or elements. A decision to refuse to grant a protection visa and any decision affirming it may, arguably, be an indivisible decision and should not be viewed, as his Honour did, as made up of discrete decisions including “a decision ... on the question of persecution on the grounds of race”. I have not found, in the time available, any authorities concerning s 16 of the ADJR Act that cast light on what might constitute part of a decision as that concept arises in s 481 of the Act. It is adverted to in a general way in Aronson and Dyer, Judicial Review of Administrative Action (1996) p 658, and D C Pearce, The Australian Administrative Law Service, paragraph 371. If the decision was indivisible in the way I have just discussed, questions would arise about the scope of the directions that might be made under s 481(1)(b) if the whole of the decision was set aside, to limit the matters to be further considered by the Tribunal: as to discretionary considerations concerning directions that can be made see Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51. The form of the orders were not canvassed before Tamberlin J who appears to have quite properly (see: Neil v Nott and Anor (1994) 121 ALR 148 at 150) distilled from the material before him an error that it is unlikely was identified, or identified with any clarity, by the applicant. In so doing his Honour acted to the applicant’s benefit by remitting the matter to the Tribunal on the limited basis identified in the orders.

However the applicant, now legally represented, wishes to challenge the correctness of that approach and the judgment of Tamberlin J more generally.  The issues sought to be raised, at least as to power, seem to me to be of substance and possibly of some significance.  I am satisfied special reasons exist and I grant leave to file and serve the notice of appeal on or before 4 pm Monday 27 July 1998.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:             23 July 1998

Counsel for the Applicant:	Mr R Dubler
Solicitor for the Applicant:	Parish Patience
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 July 1998
Date of Judgment:	23 July 1998