HB - Ex parte RRT & MIMA

[2001] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S63 of 2001

In the matter of -

An application for Writs of Prohibition and Mandamus against the REFUGEE REVIEW TRIBUNAL

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte –

HB

Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 7 MAY 2001, AT 9.33 AM

Copyright in the High Court of Australia

MR B appeared in person.

MR M.J. LEEMING:   May it please your Honour, I appear for the second respondent.  I understand a submitting appearance has been filed for the first respondent.  (instructed by Sparke Helmore)

HIS HONOUR:   I have a letter from the Australian Government Solicitor informing me that the Refugee Review Tribunal will not seek to be heard in this application and will submit to any order made by the Court, except as to costs.  Now, I think you have the assistance of a French interpreter; is that correct, Mr B?

THE INTERPRETER:   Yes, your Honour.  I am the French interpreter.

HIS HONOUR:   Excellent.  It is very nice to have you here.  It is not often we hear the French language in our Court.  The first thing to get clear is whether it is appropriate that we should name, Mr B.  I think in the Full Federal Court they did not name him.

MR LEEMING:   Yes.

HIS HONOUR:   Just in case this matter goes on the Internet and I think there is no particular interest in the Australian community in knowing his name.  It is the issue that is important.  So would you like me just to identify you as B so that you are not named in the process by your name and it will, therefore, not become part of the Internet record, or are you content that your name be used?

THE INTERPRETER:   Your Honour, Mr B would like to say something before we start the procedure.

HIS HONOUR:   Yes, very well.  Perhaps before we do this, as we do have an interpreter, perhaps we should swear you as the interpreter.

CELLA BARUCH, sworn to interpret:

HIS HONOUR:   Perhaps we might also ask whether Mr B will take an oath or make an affirmation in respect of those matters of fact which he is going to put before us.

MR B (through Interpreter):   I do not want to swear on the Koran.

HIS HONOUR:   He does not want to.  He will affirm?  That is making a solemn promise that he will tell the truth.

MR B (through Interpreter):   Yes.

HIS HONOUR:   And this is only in relation to those matters of fact which you are going to place before the Court, upon which you are going to rely in your application.

MR B (through Interpreter):   That is correct, yes.

MR B, affirmed:

HIS HONOUR:   Could I have your full name, please, as the interpreter.

THE INTERPRETER:   Cella Baruch, from Ethnic Affairs Community Relations.  They change their name.  It was Ethnic Affairs.

HIS HONOUR:   Thank you, Ms Baruch.  The first question is whether or not the applicant wishes to be named only by his initial B, given that this matter goes onto the Internet and may come to the notice of authorities in his own country or whether he is willing to have his name recorded in the record, because I am willing to name him as B, if that is what he wants?

MR B (through Interpreter):   Would it be possible at all not to appear on the Internet?

HIS HONOUR:   Well, he will appear as B and not by his name.  Is that what he wishes?

THE INTERPRETER:   Your Honour, I want to add that Mr B said that his French, which must have been very good, like all Algerians, deteriorated very much in detention, so sometimes I will have to ask him to repeat ‑ ‑ ‑

HIS HONOUR:   I understand that.  I do not take a rigid view about interpretation, knowing something about it.

THE INTERPRETER:   Thank you.

MR B (through Interpreter):   If it were for me, I would not like to appear at all, but in this case, yes, under the letter B.

HIS HONOUR:   Yes, very well.  That is how you will be named, as B.  You want to make a statement.  What is the statement you wish to make?

MR B (through Interpreter):   I received this letter from the Court asking me to come here only three days ago.  I received the letter from the High Court of Australia calling me here today and it is said here that any submissions must be filed no later than 4.00 pm on Friday 4 May.  I received it at 12.30.  That means that I did not have any time to prepare anything.  Would it be possible at all to change the date of this Court session?

HIS HONOUR:   You want the case to be adjourned?

MR B (through Interpreter):   If it is possible.

HIS HONOUR:   Are you in immigration detention at the moment?

MR B (through Interpreter):   Yes.

HIS HONOUR:   And you realise that if the case is adjourned that you will have to remain in immigration detention during the adjournment?

MR B (through Interpreter):   If you take a decision in my favour today, will I be able to be free today?

HIS HONOUR:   If, in fact, the decision is in your favour, then the matter would simply be returned before a Full Court and it would not necessarily mean that you are free, because I do not have the power to grant you a visa.

MR B (through Interpreter):   I would like your Honour to proceed - your Honour to proceed with the case in this - and if your decision is not final and I am not free, then we might as well continue.

HIS HONOUR:   Yes.

MR B (through Interpreter):   But what I want to reiterate is that I did not have the time to prepare my case at all.

HIS HONOUR:   Well, I do not want to require you to present your case if you do not feel that you have had the time to prepare it and, in particular, as you are in detention, but you must understand that if the case is adjourned, it simply means that you are in detention for a longer time.

MR B (through Interpreter):   Yes, my decision is that we would continue now.

HIS HONOUR:   You have not filed an affidavit which sets out the matters that you rely upon as grounding the three reasons for which you seek the intervention of this Court.  Do you feel able to come forward into the witness box and to explain orally the three matters that you rely upon in support of your application for relief from this Court?

MR B (through Interpreter):   I am prepared to go in the witness box.

HIS HONOUR:   And do you have any legal adviser or other adviser who can assist you?

MR B (through Interpreter):   No, I have no solicitor.  I have nothing.  I did not have the time ‑ ‑ ‑

HIS HONOUR:   Are you sure that you wish the matter to proceed today?

MR B (through Interpreter):   That is why I asked from the beginning to change the date of today - that is how he put it - to change today’s date because I need the solicitor - legal advice.

HIS HONOUR:   Yes, but how long have you been in detention?  Why has it taken you until now to get legal advice?

MR B (through Interpreter):   It is nearly 29 months that I am in detention.

HIS HONOUR:   That is what I thought.  Did you have a legal adviser earlier?

THE INTERPRETER:   Can I ask him to repeat, please?

HIS HONOUR:   Yes.

MR B (through Interpreter):   When I came to Australia the first time, I did have a solicitor.  When I appeared in Federal Court, I did not have anyone.

HIS HONOUR:   He did not have anyone?  Is that what he said?

THE INTERPRETER:   Yes.

HIS HONOUR:   Yes.

MR B (through Interpreter):   When I came to the Federal - I suppose Court - I did not have a solicitor or a legal adviser - Full Federal - Full Federal, I did not have a solicitor, but first when I arrived here I did have one.

HIS HONOUR:   What makes you think that if you have an adjournment of the case today that you will be able to get legal advice when you have not been able to get legal advice until now in the courts?

THE INTERPRETER:   May I ask him the question, because I am not clear?

HIS HONOUR:   Yes.

MR B (through Interpreter):   Usually when I went to the Review Tribunal, I asked for a solicitor, but this time I did not have the time to do it because the letter came too late, Friday afternoon.

HIS HONOUR:   Well, I want to have very clear in my mind whether you are asking for an adjournment to get a solicitor or not.  If you want the matter to proceed today, I am here and we will proceed with it today.  If you want the adjournment, I will consider whether I should give you the adjournment, but that will mean that it will be delayed and you will remain in custody for longer.

MR B (through Interpreter):   I want to continue today.

HIS HONOUR:   And you feel able to continue and present your case today and you do not want an adjournment?

MR B (through Interpreter):   I am capable - I am not a solicitor, so from this point of view, the legal point of view, I am not capable.  I am sure that a solicitor who knows the law would be better than me.

HIS HONOUR:   That is so, but you have had a long time to seek a solicitor.  You made an application in this Court on 3 April.  So you have had from 3 April until now to get a solicitor.

MR B (through Interpreter):   I made - I asked for a solicitor at the Bar Association before 3 April.  I did not have an answer.

HIS HONOUR:   Well, I just do not know whether you are applying for an adjournment or not.  I will deal with an application, if you make one, but otherwise I will proceed with the hearing.

MR B (through Interpreter):   Yes, I am sure that I would like to continue now.

HIS HONOUR:   And I think you asked him, Madam Interpreter, is he sure and he said, “Yes”.  Is that correct?

THE INTERPRETER:   Yes, I wanted - I should not have repeated my question, but I wanted to be sure of my - what I relay to you.

HIS HONOUR:   Yes, and he is sure that he wants the matter to proceed?

THE INTERPRETER:   Can I ask him again?

MR B (through Interpreter):   Yes.

HIS HONOUR:   Yes, very well.  We will proceed with the matter today.  I think, Mr Leeming, as he has no advocate or anybody to speak with him, I will just call him forward and ask him some questions.  Do you have any objection to that procedure?

MR LEEMING:   Not at all, your Honour.

HIS HONOUR:   Yes, very well.  Would you come into the witness box and if you would come with him and stand beside him, Madam Interpreter.

THE INTERPRETER:   Yes.

HIS HONOUR (through Interpreter):   You are B, the applicant in these proceedings, and at the moment you are under immigration detention at the Villawood detention facility?‑‑‑Yes.

And you have made an affirmation to tell the truth to this Court?‑‑‑Yes.

You have filed an affidavit which is dated 30 March 2001?‑‑‑Yes.

And that is the only material that you have placed before the Court in support of your application for the intervention of this Court?‑‑‑Yes.

You have made available to me, and so has the respondent Minister, three matters of official record, namely, the decision of the second Refugee Review Tribunal of 14 October - 14 October, the decision of Justice Madgwick in the Federal Court of 16 November 2000 and the decision of the Full Court of the Federal Court of Australia dated 5 February 2001?‑‑‑Yes.

And you ask me to take those three documents into account in your application?‑‑‑Yes.

Are there any other documents that you want to place before me today that you ask me to take into account?‑‑‑No, I have nothing.

No.  You can sit down if you like.  Please give the witness a glass of water.  I think you realise that this application is different from that which you made to the Federal Court.  You are now in the High Court of Australia, which is the highest court of Australia?‑‑‑Yes.

And you have asked this Court to issue the writs that are provided in the Constitution against the Refugee Review Tribunal and the Minister to prevent your being removed from Australia on the basis that you lack a visa. You claim to be a refugee?‑‑‑Yes.

In your application to the Court you have listed three grounds on which you ask for the issue of the writs ‑ ‑ ‑

THE INTERPRETER:   Writs is - - -?

HIS HONOUR: A process.

MR B (through Interpreter):   Yes.

HIS HONOUR (through Interpreter):.  Do you ask me to take into account the facts that are recorded in the three decisions that you have placed before me as providing the background that explains how you came to Australia and the arguments that you have advanced in the Tribunal and in the Federal Court?‑‑‑I didn’t understand very well the question.

You have placed before me the decision of the Tribunal, the decision of the judge in the Federal Court and the decision of the Full Court and those decisions set out an explanation of the understanding of the Tribunal and of the Federal Court of the background facts before Mr B came to Australia?‑‑‑Yes, I would like you to take into consideration these three documents.

Now, in your application to this Court you list three grounds, and I want to ask you in your own words to tell me what you say is the basis of each of those three grounds?‑‑‑In first instance I am a Berber.

I know that, but I want to ask what you say in support of each of the three grounds that you are relying on in this Court?‑‑‑The reasons why I am here in front of you and if I was in front of the Federal Court all the reasons why I came to Australia.

Well, I think it might be easier if you say first in your own words what you want to tell me as to why you claim you are entitled to relief from this Court and then if there is any uncertainty, I will ask you some further questions?‑‑‑First of all, I want to say that I am a refugee.  When I was in the - can I ask him to repeat - when I was in front of Review Tribunal they recognise that I was a refugee but they considered my case from the humanitarian - on the basis of a humanitarian point of view.

I do not think that is quite correct.  The Tribunal rejected the claim that you were a refugee but they recognised that there may be some basis for your being considered on humanitarian grounds, but that is a matter for the Minister, not for the Tribunal?‑‑‑Yes, humanitarian.  That is what I understood.

Yes.  That is not the question that is before this Court.  The only question before this Court is whether I should permit the matter to proceed further in challenge of the decision refusing to disturb the conclusion of the Tribunal that you were not entitled to refugee status?‑‑‑Yes, I understood that.

Now, you were telling me what you claim to be the errors of the Tribunal that warrant the intervention of this Court, but please keep in mind that this Court can only intervene on limited grounds of law.

THE INTERPRETER:   Can you - I am sorry, I am a little bit bamboozled.

HIS HONOUR:   Well, I will rephrase the question.

THE INTERPRETER:   Thank you.

HIS HONOUR (through Interpreter):   Do you understand that in this Court the only basis for this Court to intervene in your case is if you establish a serious error on the part of the Tribunal in terms of the law?‑‑‑I can prove to you - I have a copy of a card I have - that I was a member of a political movement and that movement is against the government in Algeria and this movement demands that the government recognises the right of their language, of the use of the Berber language.

I think this is what you told the Tribunal?‑‑‑Yes.

And in your application to this Court you have made three complaints.  The first complaint was that the decision of the Tribunal was affected by apprehended bias, that means that it had the appearance of being biased against you?‑‑‑Yes.

I have read the decision of the Tribunal and on the face of the document it does not appear to disclose any appearance of bias against you.  On the contrary, the Tribunal makes some decisions in your favour and some decisions against you and then concludes that you are not entitled to a protection visa as a refugee.  Why do you say that a reasonable person looking at the decision and conduct of the Tribunal would conclude that it was possibly biased against you?‑‑‑I told them that I was a member of this movement which was against the government and they didn’t believe me, that I was in danger.  Had I been killed, would they have believed me?

I think they did believe that you were a member of a Berber movement but they did not consider that that gave rise to an apprehension or fear that you would be persecuted if you returned, because there are many Berbers in Algeria?‑‑‑Yes, I know that there are a lot of Berbers there, but if I come here and ask refuge - can I ask him to elucidate on this point?  I didn’t come here for my pleasure or to play the tourist, the circumstances which forced me to come here and ask for refuge, and I am not happy to be far away from my family and to be in a gaol for three years, for the last three years.  Do you think that I would do this for my own satisfaction or pleasure?

Do you have any other matters that you can rely on to demonstrate that a reasonable person would think that the Tribunal was possibly biased against you?‑‑‑I declared in front of that Tribunal that the government and the militia came to me.  I declared why I came here, because they came to my house, they asked money, and if you give them money or you don’t give them money, you are in danger to be killed anyhow.  That is why I had to run away.  The Islamists….they see that you don’t follow the Islamic rules, that you don’t prayer five times a day and all that.  They know that you are against them, you don’t conform.

I think it is important that you should understand that I am not an appeal court from the Tribunal.  I can only intervene if you can make out the grounds that you have relied on and you have relied on the fact that you say that a reasonable person would think that the Tribunal was biased.  I repeat that I have read the Tribunal decision very carefully and it looks to be a fair decision on its face.  Is there anything that you wish to say that supports this contention that a reasonable person might think that the Tribunal was possibly biased against you?‑‑‑I said only the truth, what happened to me in Algeria, and they didn’t believe me.  What other proof can I bring?  That if I would come with a broken arm or a cut arm, would they believe me better?

I think that they did believe that there was a security problem in Algeria and they believed that there might be humanitarian reasons for allowing you to stay in Australia, but they did not believe that because you had taken part in the Berber movement in Algeria, that that gave you the grounds to be a refugee?‑‑‑The RRT, the member who judged my case in the RRT, believed me that I have a humanitarian reason to be accepted as a - to give me a protection visa, but I wrote six times to the Minister and I was refused.

I have no power to intervene in the Minister’s decision in that respect and only in respect of your claim for a protection visa as a refugee.  Do you understand that?‑‑‑Yes, I understood.

The second grounds that you have relied on is that the decision was affected by insufficient reasons, the decision of the Tribunal by insufficient reasons.  What do you want to say about that ground?

THE INTERPRETER:   Sir, if I understood it right, that the decision of the Tribunal was not based on sufficient reason?

HIS HONOUR:   Was affected by insufficient reasons?‑‑‑Yes, that is what I said.

The decision which I have read is 27 pages long, which is longer than most decisions of the Tribunal, and, in fact, was the second decision of the Refugee Review Tribunal in your case.  Is that correct?‑‑‑I didn’t understand very well.

You are complaining that the decision has insufficient reasons?‑‑‑Yes.

And this is the decision of the second Tribunal.  Is that correct?‑‑‑Yes, of the RRT.

The first Tribunal’s decision was set aside by Justice Tamberlin in the Federal Court?---Yes.

HIS HONOUR:   And, therefore, the Tribunal has prepared a report of 27 pages, no doubt conscious of the fact, or possibly conscious of the fact, that the first decision was set aside.

THE INTERPRETER:   Set aside is refused?

HIS HONOUR:   Quashed.

THE INTERPRETER:   Thank you.

HIS HONOUR (through Interpreter):   Is that correct?‑‑‑Yes, I know that.

Now, what is your complaint about the insufficient reasons of the Tribunal?‑‑‑The first time I went to the RRT, they refused me.  Then I asked for a second decision, Federal Court, and I won my case and I went back to the RRT another time, once more.

And that is the decision that you are challenging in this Court, the second decision?‑‑‑Right.

And it is 27 pages long?‑‑‑Yes.

And you are complaining that it is affected by insufficient reasons?‑‑‑Yes, they accepted that I was a member of the movement, they accepted that I was in danger because they came to me in my house and that I was in danger, but then - and they - the decision they took is humanitarian, on a humanitarian basis.  What else - and that I wrote six times to the Minister.  What else could I do?  Once that I accepted - I thought I was accepted on the humanitarian basis.

Is this the matter that you are complaining about when you say that the decision was affected by insufficient reasons?‑‑‑Yes.

Your third ground was that the decision of the Tribunal was made in circumstances which amounted to a breach of natural justice - was that the decision was made in circumstances that amounted to a breach of natural justice?‑‑‑Yes, I said that they didn’t accept the things I told them, the argument I told them.

Are there any other matters that you rely on as constituting a breach of natural justice?‑‑‑Yes, I told them that I am against the government, I am against their law, I am against their persecutions and they didn’t believe me, but it’s enough to look at any newspaper, even the events of three days ago, what happened in Algeria, but they didn’t take this into consideration when I told them.

I think the Tribunal, I repeat, considered that there was a security problem in Algeria but not such a problem as gave rise to the fear that would make you a refugee?‑‑‑In Algeria it is sufficient that they look at you and they see that you are a Berber and they start torturing you or doing terrible things to you and if you are against the State, the government, against their politics, it is even worse.  I explained them all my problems and they didn’t believe me.  What else can I do?

Is there any other complaint you have about the fairness of the procedures of the Tribunal?‑‑‑They should consider what I say - what I told them in the perspective of what is happening in my country.

But do you have any other complaint that you have not mentioned to me concerning the procedures which they followed in deciding your case?‑‑‑I told them the truth.  They don’t believe me.  I can’t prove it in another way.  I told them when these people came to me and threatened me I couldn’t

photograph them to have a proof that they came.  I told them what happened to me exactly.

I am sure that some of my questions to you must have seemed strange - would you interpret this carefully .  You want to tell me that I should change the decision of the Tribunal because the decision of the Tribunal is wrong in fact.  I do not have the power to do that.  I only have the power to intervene if the Tribunal has made a serious mistake of law as to its jurisdiction.  That is why I have been asking you about the three grounds that you have in your application.  That is why I asked you about bias, about reasons and about natural justice?‑‑‑I want you to follow well what I am telling you.  First of all - I mean what you told me - first of all, they accepted that I was a member of a political movement.  They accepted the fact that people came - that Islamists came to my place and asked for money.  He accepted - they accepted that there were reasons - very, very valid reasons that I’ll be persecuted if I go back to Algeria and he accepted the fact that it’s one of the countries in the world where the situation is very dangerous.  They accepted that I left my family and they accepted that I cannot come back - go back to Algeria.  In the last instance, they judge my case that I have grounds on a humanitarian point of view and I wrote six times to the Minister and I was refused.  What else could I do - can I do?

Yes, thank you.  Did you have any questions?

MR LEEMING:   No, I do not, thank you.

HIS HONOUR:   Yes, very well.  You may go and sit at the Bar table.  Mr Leeming, what I said about the humanitarian visa was correct, was it not?

MR LEEMING:   Yes.

HIS HONOUR:   There is now power in the Refugee Review Tribunal to provide a visa on humanitarian grounds?

MR LEEMING: No, a separate statutory power is conferred by, I think section 417. That is a power that can be exercised by the Minister and only by the Minister. In fact, yes, section 417(3) in terms states that that power may only be exercised by the Minister personally. I have a copy of that section if it assists your Honour.

HIS HONOUR: Show that to the interpreter. The interpreter might translate section 417(3).

THE INTERPRETER:   I do not think that he understood very well.

HIS HONOUR:   Just hand the document back to Mr Leeming.  I know that this must be very confusing to the applicant but the document says that it is only “the Minister personally” who can grant a visa on humanitarian grounds.  It is not the Tribunal, whose decision I am asked to review.  Does the applicant understand that?

MR B (through Interpreter):   Yes, I understood.

HIS HONOUR:   Yes.  Does the applicant have any other witnesses or evidence that he wants to call in support of his application?

MR B (through Interpreter):   All the documents I submitted already and I have not got any witnesses.

HIS HONOUR:   Yes, thank you.  Do you have any evidence on behalf of the Minister?

MR LEEMING:   No, your Honour.

HIS HONOUR:   What do you say?  I have received and read the written submissions.  Have the written submissions been given to the applicant?

MR LEEMING:   Last Friday.

HIS HONOUR:   Yes.  I will just ask: the Minister has put in a written submission to the Court and I understand a copy of that was delivered to the applicant last Friday.

MR B (through Interpreter):   Is this – yes, I received that.

HIS HONOUR:   Yes, very well.  I am going to ask Mr Leeming, who is the lawyer for the Minister, to address the Court and what he says will be translated and then I will ask the applicant to address the Court.  If you would just give a translation, as best you can, of what Mr Leeming says to me.

THE INTERPRETER:   All right.

MR LEEMING:   May it please the Court, in my submission, no arguable case of jurisdictional error has been made out.  Can I deal quickly with two factual matters?

HIS HONOUR:   Perhaps you might translate as he goes along.

THE INTERPRETER:   Yes.  Can you repeat it, please, because – I am sorry.

MR LEEMING:   No, that is okay.  In my submission, no arguable case of jurisdictional error has been made out.  May I just refer your Honour to passages dealing with the two factual matters that have been the subject of evidence this morning.  The first concerns the robbery at the applicant’s shop in March 1998.  At page 20 of the Tribunal’s reasons, at about line 8, the Tribunal does find that there was a robbery by three unknown men at that time, but, after referring to the independent evidence, concludes at the bottom of that page that it could not:

be satisfied that the robbers were from any political group or from the government.

That finding was determinative of that aspect of the applicant’s claims.  The second factual matter concerns the applicant belonging to a Berber group or groups and at the bottom of page 17 is the finding by the Tribunal that he was involved in Timlitit and in the MCB.  In relation to the first ground, as I understood it, the applicant was saying that that finding was not made, although in relation to his claim for contravention of natural justice he accepted that it was made.  But on the following page, page 18, the Tribunal concluded that merely belonging to those associations did not give rise to a well‑founded fear of persecution, having regard to the way in which the Algerian Government dealt with Berbers.

HIS HONOUR:   Those two organisations are organisations of Berber activists in Algeria.  Is that correct?

MR LEEMING:   Yes.  They are referred to at page 4 of the Tribunal’s reasons, where reproduced is a statement from the applicant at about point 7 of the page.  It is the third‑last paragraph.  The MCB is there defined and the Association Culturelle Timlitit.

HIS HONOUR:   Yes.

MR LEEMING:   Having regard to those findings and having regard to what has been put to the Court this morning, in my submission, no arguable case either for apprehended bias, insufficient reasons or breach of natural justice has been made out, even if it be assumed in the applicant’s favour that making out those cases would constitute jurisdictional error.  For those reasons, the application should be dismissed.  Unless I can further assist the Court, those are the submissions I make.

HIS HONOUR:   Yes, thank you.  What does the applicant wish to say to me?

MR B (through Interpreter):   I want to say that in my opinion I should be considered a refugee.  That I can say that there were two or three cases similar to mine and they were granted the visa and I even said to the Minister in my letters, I quoted the decision in favour of that man who was granted on the same basis a visa.  I can only reiterate, as I said, only the truth and only the truth, and what else can I give, sir, as a proof?

HIS HONOUR:   Is there anything else that you wish to say in answer to what the lawyer for the Minister has said to me?

MR B (through Interpreter):   In reply to that, I said all the truth, I told all the secrets, and that is all.  I cannot add anything.  I did all my secrets.  I told everything what happened to me in Algeria which pushed me to flee and to become a refugee.  I thank you very much and I hope that you understood me.

HIS HONOUR:   I am now going to give my decision.  The decision will be typed up and it will be sent to you at the Villawood Detention Centre.  I would hope that steps could be taken in the Centre to have the decision translated for you so that you can read it and understand it.  You will have a right to appeal against my decision by leave of the Court to a Full Court.

THE INTERPRETER:   He has a right?

HIS HONOUR:   He will have a right.  Just sit down, if you would.

This is an application for relief pursuant to section 75(v) of the Constitution. It is brought by Mr B. I have described him in this way at his request. There is no interest in the Australian community in knowing his name. It may be desirable that his name should not be disclosed to authorities in his own country. I shall call him “the applicant”.

In his application the applicant names the Refugee Review Tribunal (“the Tribunal”) as the first respondent and the Minister for Immigration and Multicultural Affairs (“the Minister”) as the second respondent.  Nothing turns, in these proceedings, on whether the first respondent is correctly named by its institutional title rather than by reference to the officer of the Commonwealth concerned.  The Minister has appeared to resist the relief sought.  The Tribunal has submitted to the orders of this Court.  The Minister is represented by counsel.  The applicant is unrepresented and has communicated to the Court through an interpreter of the French language.

The history of the proceedings

The draft order nisi filed by the applicant seeks the issue of the constitutional writ of mandamus directed to the Tribunal and a writ of prohibition directed to the Minister.  Effectively it seeks to restrain the carrying into effect of a decision of the Tribunal concerning the applicant given on 14 October 1999.  That decision affirmed the decision of the Minister’s delegate refusing the applicant a protection visa.  This visa was claimed on the basis that the applicant is a refugee under the Convention Relating to the Status of Refugees 1951 as read with the Protocol of 1967 and as incorporated in Australian law:  see Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [169].

The applicant arrived in Australia without proper documents on 18 November 1998.  He applied for a protection visa on 2 December 1998.  This application was refused by the Minister’s delegate.  The refusal was affirmed by a Tribunal hearing on 11 February 1999.  However, the applicant successfully applied to the Federal Court of Australia for review of that decision.  On 8 July 1999 Tamberlin J set aside the Tribunal’s decision.  He remitted the matter for redetermination by the Tribunal, differently constituted.  The reconsideration occurred on 14 October 1999.  On that date the second Tribunal affirmed the decision not to grant the applicant a protection visa.

Once again, the applicant applied to the Federal Court for judicial review.  This time his application was heard by Madgwick J.  On 16 November 2000 his Honour refused the application.  The applicant appealed to a Full Court of the Federal Court.  That court, constituted by Wilcox, Weinberg and Conti JJ, on 5 February 2001, dismissed the appeal.

On 3 April 2001 the applicant applied to this Court for the order nisi for the constitutional writs mentioned.  This process was accompanied by a very brief affidavit mentioning the above history but not otherwise disclosing the grounds on which the relief was claimed.  However, filed in the Court were the decision of the second Tribunal, the decision of Madgwick J and the decision of the Full Court.  It appears to have been assumed by the applicant that this Court would accept the version of events recounted in these decisions as setting out the facts relevant to the grant of the relief sought.  Subsequently, in his evidence before me today, the applicant asked me to take the decisions into account as stating generally the background facts.

Initially when the matter was listed before me, the applicant sought an adjournment of the hearing.  However, on reflection, he asked that the hearing proceed.  I was satisfied that he understood that this would require him to present the entirety of his evidence and argument today.  He proceeded to do so.

The propounded grounds for relief

The stated grounds of relief mentioned in the draft order nisi are:  (1) that the decision of the second Tribunal was affected by apprehended bias; (2) that the decision of the second Tribunal was affected by insufficient reasons; and (3) that the decision of the second Tribunal was made in circumstances which amounted to a breach of the rules of natural justice.

The relief sought appears to be outside the jurisdiction of the Federal Court of Australia, making it impossible for me now to remit the matter to that court:  see Migration Act 1958 (Cth) (“the Act”) s 476(2)(a). Certainly, the first and the third grounds are outside the Federal Court’s jurisdiction: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [2] and [112]. As it has been explained, the second ground appears to represent an aspect of the complaint of apprehended bias. At least, that is as much as I could make of it. As such, it would be inappropriate to remit it to the Federal Court, even if that course were available, which I doubt.

The governing principles

I take the following principles to govern my consideration of this application:

1. The applicant is entitled to have the order nisi issue if he makes out a reasonably arguable case on the grounds propounded or on any other grounds that emerge during the hearing of the application:  see Re The Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2001) 74 ALJR 1404 at [9].

1. Upon current exposition of the law concerning constitutional writs, the case must demonstrate not merely that the officer of the Commonwealth concerned has acted erroneously or made errors of law or fact, but that he or she did so in a way that constituted “jurisdictional error”:  see Re Minister; Ex parte PT [2001] HCA 20 at [24]; compare Abebe v The Commonwealth (1999) 197 CLR 501 at 511‑512 at [105], and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [211]‑[213].

1. The applicant bears the onus of establishing an arguable case entitling him to relief:  see Re Carmody; Ex parte Glennan (2000) 74 ALJR 1148 at [2]. Allegations of the possibility of bias and of a breach of the rules of natural justice must be firmly established. A mere sense of disquiet is not sufficient to afford relief: see Reg v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553.

1. The demonstration of a breach of the rules of natural justice or of apprehended or ostensible bias on the part of the officer of the Commonwealth concerned, if made out, could amount to jurisdictional error:  see Minister for Immigration and Multicultural Affairs v PT [2001] HCA 20 at [24]; Re Minister; Ex parte Miah [2001] HCA 22 at [213], applying Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 at 61 [41], 176 ALR 219 at 231.

1. Whatever might be the limitations on the jurisdiction and powers of the Federal Court, the Act does not purport to, and could not, exclude the jurisdiction of this Court under the Constitution, section 75(v), to provide the constitutional writs there mentioned in a proper case to which those writs apply: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [113].

1. If the entitlement to relief is otherwise established, this Court retains a power to refuse such relief on discretionary grounds:  Minister for Immigration and Multicultural Affairs v PT [2001] HCA 20 at [24].

Procedural difficulties

The application faced a number of procedural difficulties.  I have already mentioned the naming of the Tribunal and the lack of a foundation in affidavit evidence for the relief sought.  As well, the draft order nisi did not, in terms, seek a writ of certiorari, as is normal, to quash the decision of the Tribunal to make effective the issue of the constitutional writs claimed.  Furthermore, the application is well out of time.  If an application for certiorari were sought, for example, it would have to be made within six months of the decision impugned:  see High Court Rules Order 55 rule 17.  The present application is well outside that period.  No apparent reason has been shown to excuse the delay or to warrant an extension of time, save for the inferences available as to the difficulties arising from the applicant’s detention.

The judges of the Federal Court noted that the applicant came from a civil law country where, conventionally in administrative matters, the judge or magistrate takes an active inquisitorial part in elucidating facts and clarifying issues. Because the applicant is unrepresented before me, I have endeavoured to do that today to the extent that I considered proper. Obviously, there are limits upon the extent to which a judge, like me, exercising the judicial power of the Commonwealth under the Constitution and in this Court, can adapt the normal procedures of a federal court to meet the predicament of the applicant.

The applicant has not been provided with counsel or a solicitor or any other advocate or representative.  He has for a long time been detained in immigration detention.  He is unable to earn funds to pay for a lawyer of his choice.  He does not speak the English language.  He claims to be a refugee.  In such circumstances it would be an affront to justice for me to sit silent and allow him, unaided, to flounder in the mysteries of our court procedures and substantive law until he had adequately demonstrated an incapacity to present relevant evidence and argument.  The judicial power does not oblige those who exercise it to engage in a charade of justice.  On the other hand, there are limits upon what judges can do.  I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced.

I also express concern as to whether it is truly the intention of the Parliament that cases of this kind should occupy the time of the Justices of this Court, exercising the original jurisdiction of the Court in such a way.  However, in default of a facility to remit the matter to another court  or to have the application heard in some more satisfactory way elsewhere, I must shoulder the responsibility of determining it as best I can in the circumstances described.

The findings of the Tribunal

I have carefully considered the decision of the Tribunal and the judgments of the Federal Court which the applicant has put before me.  I have also considered his evidence and his submissions at the close of the evidence.  I do not have the transcript of the evidence or statements adduced before the second Tribunal.  Nor do I have, so far as it may be relevant, the decision of the delegate.  However, the second Tribunal’s decision covers 27 pages.  On the face of things it appears, as I told the applicant, to be a thorough and detailed explanation of the Tribunal’s reasons for its decision.  It also appears to be fair, containing some conclusions favourable to the applicant and some unfavourable.  It does not show on its face any defect of substance or procedure that I could perceive.

From the Tribunal’s decision it emerges that the applicant is an Algerian national of Berber ethnicity.  The essence of his application is that he has the well‑grounded fear which is referred to in the Convention for the reason of his Berber ethnicity and of events that have occurred to him consequent upon that reason and the attitudes to him of religious fundamentalists and nationalists in Algeria and their supporters.

The applicant relied before the Tribunal upon a number of particular circumstances.  These circumstances were reviewed in the Tribunal’s decision.  For example, the Tribunal accepted, at page 17 of its reasons:

that the applicant was involved in Timlitit [a Berber activist organisation] from 1988 and in the MCB [another such organisation] from 1983.

The Tribunal accepted:

that he was a secretary of these organisations from the time he joined, and that in 1987, his arm and thumb were broken when the authorities broke up a Berber demonstration.

However, the Tribunal did not accept that, were he to return to Algeria, the applicant would suffer persecution by reason of his Berber ethnicity.  On page 19 of its reasons, the Tribunal found:

After considering all the applicant’s evidence as to his being detained in Algeria . . . the Tribunal does not accept that his claim of being detained many times, or at all, is credible.

And on page 24 of its reasons the Tribunal added, after reviewing national reports of the treatment of Berbers in Algeria:

After considering all the evidence, the Tribunal has found that in general, the Algerian government does not target Berber activists for persecution.  However, the adviser submitted . . . that though Berber organisations are legal, this does not preclude that there is ‘an unofficial policy of persecuting those Berbers such as [the applicant] who are actively promoting Berber separateness’.  The Tribunal accepts that anything is possible, particularly in the context of Algeria, but nevertheless, it has to make a decision as to the real chance of persecution happening to the applicant for a Convention reason.  On the evidence before it, the Tribunal finds that if the applicant returns to Algeria, there is not a real chance of persecution being done to the applicant in Algeria by the authorities in the reasonably foreseeable future, because of his Berber activities as he described them in his claims.

The Tribunal also did not accept statements made by the applicant concerning the interpretation to be placed upon a robbery which he suffered.  The Tribunal, on page 20 of its reasons, found that:

three unknown men broke into the applicant’s shop in March 1998, asked him for money, did not give a reason why they wanted the money, and threatened to kill the applicant if he did not have further money the next day.

However, on the same page of its reasons, the Tribunal concluded:

the Tribunal is not satisfied that the robbers selected him for extortion, even in part, for his race, political opinion, actual or imputed to him, or any other Convention reason.

For the foregoing reasons, the Tribunal expressed its ultimate conclusion:

if the applicant returned to Algeria, he will not face a real chance of persecution because of his Berber race and/or political opinion imputed to him by the authorities and/or the militants by reason of his Berber activism.  The Tribunal finds that the applicant’s fear of return to Algeria on the ground of his Berber activism was not a well‑founded fear of persecution for a Convention reason.

Mention of humanitarian considerations

At the close of its reasons the Tribunal, at page 26, stated this:

Given the state of Algeria, the Tribunal notes that the applicant’s case appears to raise humanitarian issues.  However the Tribunal’s role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa.  A consideration of his circumstances on other grounds is a matter solely within the Minister’s discretion.

The applicant stressed this last‑mentioned statement in the Tribunal’s reasons. The statement does appear to indicate accurately the limits of the Tribunal’s jurisdiction. By s 417(3) of the Act, the Minister is entitled to substitute a decision for the Tribunal on humanitarian grounds. However, this entitlement must be exercised by the Minister personally. It is not a power that belongs to the Tribunal. Accordingly, it is not a power that could be exercised by this Court reviewing the decision of the Tribunal with a view to considering the availability of constitutional relief.

I can understand why the applicant, having read the Tribunal’s reference to humanitarian issues, regards that question as pertinent to his case.  He apparently applied to the Minister for the exercise of the Minister’s discretion.  The Minister has not exercised the discretion in his favour and has given no reasons for his decision.  The applicant mentioned other cases involving Berbers from Algeria where a protection visa was granted by the Tribunal.  However, I know nothing of those cases or of the particular circumstances upon the basis of which those cases were determined.  I can only deal with this application on the material that has been put before me.

Absence of demonstrated jurisdictional error

I am not sure that the applicant fully appreciated the distinctions which our law draws between an appeal on the merits from a decision such as that of the Tribunal and the limited jurisdiction which this Court enjoys to disturb such a decision for jurisdictional error.  I endeavoured, during the hearing, to address his attention to the three grounds which were set out in his application.  Those grounds were apparently drawn with the assistance of someone who understands the limited jurisdiction of this Court.  The applicant did his best; as did I.  However, obviously he was at a severe disadvantage, not having an advocate or available legal advice.  The subtleties of “jurisdictional error” have sometimes escaped experienced judges.  It is, therefore, not wholly surprising that the distinction might not have been fully understood by the applicant.

For all this, I consider that the applicant has said all that he can say in complaint about the decision of the Tribunal.  His essential complaint is that the Tribunal came to the wrong decision in his case on the facts placed before it.  That is not a complaint that, without more, enlivens the jurisdiction of this Court to provide a constitutional writ.  Specifically, it is a complaint that falls short of showing jurisdictional error on the part of the Tribunal.  In the circumstances, I am not convinced by what I have read and heard today that any of the grounds relied on by the applicant has been made out as reasonably arguable.  I see no evidence, in the matters placed before me, that supports any of the three complaints which the applicant makes.

Conclusion:  application dismissed

In these circumstances, to extend the applicant’s claim and continuing loss of liberty would be unreasonable and futile.  The applicant has no real prospect that he could identify an arguable ground of jurisdictional error on the part of the Tribunal.  He has already been in Australia without a proper visa for two and a half years.  The time has come to close this chapter in his life.  He has exhausted the remedies available under the Australian legal system, save only for an appeal by leave to the Full Court of this Court.  In my opinion, his application for an order nisi must be dismissed.

Do you ask for costs?

MR LEEMING:   Yes, I do, your Honour.

HIS HONOUR:   The application has been dismissed and the Minister has asked for costs.  Whether those costs could be enforced in your situation is uncertain, but it is normal in Australia, in a matter of this kind, where the application fails, for a costs order to be made against the applicant.  Do you have any reasons why I should not make the order against you for the costs?

MR B (through Interpreter):   I have no money.

HIS HONOUR:   Yes, I understand that.

The order will be the application is dismissed with costs.  I certify for the attendance of counsel in Chambers.  I will direct that a copy of these reasons, when they have been prepared, be sent to the applicant at the Villawood Detention Centre.  He can now be returned to immigration detention.

The Court will now adjourn.  I thank the interpreter for her assistance.

AT 11.10 AM THE MATTER WAS CONCLUDED