Conduah, Augustus v Russell, Stuart Constituting the Refugee Review Tribunal

[1998] FCA 546

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 462 of 1998

BETWEEN:

AUGUSTUS CONDUAH
Applicant

AND:

STUART RUSSELL CONSTITUTING THE REFUGEE REVIEW TRIBUNAL
First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent

JUDGE:	BURCHETT J
DATE:	15 MAY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

In this matter, I am asked to grant an interlocutory injunction in very unusual circumstances.  At least I hope they are very unusual.  A Tribunal set up under statute to hear an extremely serious matter, a case under the legislation implementing the international convention dealing with refugee status, having had the matter before it for some nine months, fixed by letter a date for hearing without consulting the applicant or his advisers.  Then, some time after that, by letter sent only seven days before the date of the hearing, the Tribunal advised the applicant's solicitor of what, on the face of it, may be regarded as seriously adverse material.  That material appears to have been available to the Tribunal throughout the nine months, being material obtained in proceedings involving a third party back in 1995. 

The material is of an anthropological nature, the applicant being a Ghanaian from a village in central Ghana whose claim of refugee status depends on the proposition that he is the matrilineally descended heir to a chiefdom which the village elders require him to take up, and in the taking up of it to be involved in child sacrifice, on pain either of death or of serious penalty to himself upon refusal.  He has refused, has fled to Australia and has made his claim for refugee status.  His brother, who is in the like position, has done the same.  For some reason, it is the applicant's case which has been set down for hearing, and the brother's has not yet been set down for hearing.  The child sacrifice custom is alleged to be an established custom of some areas known as Juju.  The adverse material is anthropological material from the University of Birmingham, which has a department specifically concerned with the study of the anthropology of West Africa.  This material confirms the matter of matrilineal descent of chieftains and the existence of a body of village elders concerned with the elevation of a new chief.  But it makes no mention of the matter of child sacrifice.  The applicant, fearing that the silence of the material on the question of child sacrifice will be used adversely to his credit, wishes to communicate with the University of Birmingham in order to obtain confirmation, as he says he will be able to do, that chieftainship questions are, in fact, linked with the custom of Juju.

The applicant did not let the grass grow under his feet.  Immediately upon receipt of the communication from the Tribunal, his solicitor requested an adjournment to enable the further material to be obtained in rebuttal and also wrote away to the University of Birmingham.  Not surprisingly, he has not as yet received a reply from Birmingham.  He has received a refusal of his application for adjournment, a refusal which has been confirmed by a further letter.

The matter is due for hearing on Monday, and I am asked to grant an injunction to restrain the proceeding under s 6 of the Administrative Decisions (Judicial Review) Act 1977, on the footing that to proceed with it in these circumstances would be unlawful having regard to the obligation imposed on the Tribunal by the Migration Act 1958 (s 420) to provide a mechanism of review that is fair and just and to act according to substantial justice and the merits of the case. That is not intended to be an exhaustive statement of the legal issues that would be involved, as the applicant's case could be put in several ways.

However, the matter that seems to me to determine the present application is that the Refugee Review Tribunal did write a letter to the applicant’s solicitor dated 13 May, that is, Wednesday of this week, in which it stated that it had taken note of the letter of 11 May requesting an adjournment.  Then it went on to state:

“The Tribunal notes that you have acted as Adviser for the applicant since August 1997.  In the Tribunal's view, this has given you more than sufficient time to obtain any documents you believe are necessary to represent your client.

Since the other matter to which you refer in your letter has not yet been constituted, the Presiding Member has decided that for these reasons your request is refused, and the hearing in this matter will proceed as scheduled.”

Pausing there, it is noteworthy that the letter from the Tribunal makes no reference at all to the real reason why an adjournment was sought.  It is little to the point to say that the adviser to the applicant had been acting for a sufficient time to obtain documents he believed necessary.  The point is that he did not know that rebuttal of the material from the University of Birmingham would be required, because he was not notified that that material was to be introduced into the case until last Monday.  Not knowing that that material - which all this time, I am told, was in the possession of the Tribunal - was to be relied on, he was not alerted even to the existence of the Centre for West African Studies at the University of Birmingham, from which the material emanated.  The (and I quote) “other matter” mentioned in the letter is a suggestion which the solicitor made that, if the application of the applicant were adjourned, it could be brought on for hearing at the same time as his brother's application which raises precisely the same issues.  That application has, apparently, not been set down for hearing as yet, although it was made at the same time.  Despite the matters on which I have commented, the letter goes on to say in a final paragraph:

“If you wish to lodge any further documents within a reasonable delay after the hearing, the Presiding Member will give you leave to do so.”

It is that sentence which it seems to me requires that I refuse the relief that is now sought.  The sentence is admittedly far from precise.  It gives no indication of what is thought to be a reasonable delay.  Nevertheless, it does indicate in unqualified terms that leave will be given to introduce further material after the hearing.  And it seems to me the very fact that refusal of an opportunity to answer the material emanating from the University of Birmingham would so obviously be contrary to the most elementary concepts of a fair hearing must make the court inclined to give a generous construction to the last sentence of the letter.  It should not be assumed that the Tribunal would offend against elementary concepts of justice.

Furthermore, the refusal of an adjournment sought prior to a hearing is always interlocutory in nature.   It can never be regarded as final or binding, either on the Tribunal or the parties.  Consequently, it will be open to the applicant to apply on Monday, at a time when he will be able to bring the Tribunal totally up to date with the position as to his efforts to provide an answer to the material in question, and the eventuality in respect of those efforts.  I think this is a further matter to be borne in mind.

Finally, it must be accepted that it is only in the most extreme circumstances that a court exercising supervisory jurisdiction would entertain an application to abort a hearing before an inferior tribunal, to which an application for an adjournment could be made at the time of the hearing.  An earlier refusal, as I have said, is not in itself a conclusive matter that could affect this principle.  The present case is very close to the borderline, having regard to the extraordinarily short time allowed to deal with adverse material emanating from the other side of the world, and which had not just arrived but had been in existence for a lengthy period.  Nevertheless, I think the general rule, even in this extreme case, should prevail, and that the applicant should be left to his remedy of renewing the application, if he wishes, at the hearing; and in addition to the remedy, that he has been assured is available to him, of putting in further material after the hearing.  Ultimately, of course, he retains the final remedy of an appeal, should the way these matters are handled result in a breach of the legal obligations of the Tribunal in respect of the hearing.  For these reasons, I refuse the application.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:
Dated:            22 May 1998

Solicitor for the Applicant:	Mr C Levingston of Corby Levingston
Solicitor for the Respondents:	Mr A Markus of the Australian Government Solicitor
Date of Hearing:	15 May 1998
Date of Judgment:	15 May 1998