M1002 of 2003 v Minister for Immigration - [2005] FMCA 1040

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M1002 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1040

MIGRATION – Refugee Review Tribunal – protection visa – whether jurisdictional error.

PRACTICE AND PROCEDURE – Whether extension of time required – whether s.486A of Migration Act applies – whether joinder in existing High Court action sufficient to constitute application for judicial review.

Migration Act 1958, s.486A

Muin v Refugee Review Tribunal (2002) 190 ALR 601
Re Refugee Review Tribunal; ex parte Aola (2000) 204 CLR 82
VAS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 350

Applicant:

APPLICANT M1002 of 2003

Respondents:

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

File Number:

MLG 297 of 2004

Judgment of:

McInnis FM

Hearing date:

21 July 2005

Delivered at:

Melbourne

Delivered on:

28 July 2005

REPRESENTATION

Pro Bono Counsel for the Applicant:

Mr A Hands

Counsel for the Respondents:

Mr R Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application for extension of time is refused.
In the alternative, the application is otherwise dismissed.
The applicant shall pay the respondents' costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 297 of 2004

APPLICANT M1002 of 2003

Applicant

And

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

Respondents

REASONS FOR JUDGMENT

In this application leave was granted to the applicant to amend the application by deleting ‘J. Vrachnas’ as second respondent and inserting in lieu thereof the ‘Refugee Review Tribunal’. The application seeks orders in the nature of writs of prohibition, certiorari and mandamus in relation to a decision of the Refugee Review Tribunal (the Tribunal) dated 16 November 2000. The Tribunal decision had affirmed the decision of the delegate that the applicant is not a person to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees and therefore is not entitled to the grant of a protection visa.
It is noted from the Tribunal decision that at that time, in November 2000, the applicant was then a 28‑year‑old male citizen from Sri Lanka who had arrived in Australia in 1997, though incorrectly referred to in the tribunal's decision as ‘1995’, as the holder of a passport issued in another name and therefore relying on what was said to be a forged passport. The application for a protection visa was lodged on 1 July 1997. The application was refused on 11 September 1997 and an application was then made on 8 October 1997. It is clear from those dates and otherwise in the material that the reference by the Tribunal to the applicant arriving in Australia in 1995 is a simple error and should read "1997".
The applicant attended a hearing of the Tribunal on 9 November 2000 in order to give oral evidence and was accompanied by an adviser/solicitor. The basis of the applicant's claim for protection has been accurately summarised in the respondents' contentions of fact and law as follows:
a)He claimed fear of persecution from the Sri Lankan authorities because of his involvement with the United National Party ("UNP").
b)He claimed fear of persecution from the Sri Lankan authorities and other militant groups because he was imputed to be a supporter of the Liberation Tigers of Tamil Eelam ("LTTE").
c)He claimed fear of persecution from the LTTE itself because he was thought, by them, to have identified some LTTE members to the authorities.
It is noted that the applicant did not seek judicial review of the Tribunal decision in the Federal Court under the then Part 8 of the Migration Act 1958 (the Migration Act). Instead on 20 June 2001, more than six months after the decision of the Tribunal, the applicant joined a class action in the High Court of Australia then conducted by solicitors Adrian Joel and Co. Subsequently that matter was remitted from the High Court to the Federal Court of Australia.
A preliminary issue arose in relation to whether or not the time limit introduced in the Migration Act by s.486A applied to this application. That provision provides a time limit of 35 days within which an application to the High Court of the relevant writs should be made. The period of 35 days is "within 35 days of the actual (as opposed to deemed) notification of the decision". Section 486A of the Migration Act became operational on 2 October 2001 and was introduced by way of amendment in Act 134 of 2001, s.3 and schedule 1. Prior to that date it is noted that Part A was introduced by way of an amendment set out in Act 129 of 2001, s.3 and schedule 1 which became operational on 27 September 2001. Hence, there was a short hiatus between

27 September and 2 October before the introduction of the 35-day time limit. In any event, on the basis of affidavit material before this court it would appear that the applicant joined the class action to which I have referred on 23 July 2001.
A question arose as to whether or not joining that class action in the High Court of Australia constitutes making an application for judicial review. Applying the definition of an application for judicial review set out in item 8 of schedule 1 of Act 134 of 2001, I am satisfied for the present purposes that in the circumstances that is sufficient evidence of an application for judicial review having been made prior to the new s.486A of the Migration Act becoming operational. To that extent and for the present purposes, I am satisfied that the time limits that then applied were the previous time limits which applied in the High Court, namely, and most relevantly, a two-month period for writs of mandamus (O55 r.17) and a six-month period for writ of certiorari (O55 r.30) High Court Rules.
In any event, if the court is wrong in reaching the conclusion that the High Court time limits applied, it is clear on the material before me that in any event the application is out of time and an extension of time is required. It is further evident to me and I conclude that even if the court is in error in applying the High Court time limit, that the principles to be applied in the exercise of the court's discretion in considering an extension of time must include determining whether or not there is indeed an arguable case. To that extent it is necessary for the court to consider the merits of the case, in the first instance to determine whether indeed an extension of time should be granted, assuming the court is satisfied on the chronology of events given the short period involved between the application in the High Court and the expiration of the time limit, whether it be the old limit or the 35-day limit, assuming some satisfactory explanation is given, and certainly it is noted a significant period of time has elapsed due to consideration by the High Court of the proceedings joined by the applicant.
For present purposes, in my view the most important issue to consider in the exercise of the court's discretion in relation to extension of time is whether there is indeed an arguable case. The tribunal made a number of significant credit findings against the applicant. Those findings have been accurately set out in the respondents' contentions as follows:
a)It did not accept that the applicant was an officer (sic) bearer in the UNP or that he was an organiser of any of its activities [Decision 11.4]. It accepted that he was a supporter of the UNP and was involved in some minor election campaign activities, but that he was not involved as claimed in the 1994 presidential campaign [Decision 14.2]. He only had a minor role with the UNP [Decision 14.7].
b)It did not accept the applicant's claim that he was a member of the Muslim Home Guard, rather that he had only a peripheral connection to that group. His claim to have an intimate involvement was an effort to bolster his claim that he was an active office bearer of the UNP [Decision 10.5-10.9].
c)It did not accept that the applicant had been detained, escaped, and gone into hiding because he was suspected as a supporter of the LTTE or that he was being sought by the Sri Lankan authorities [Decision 14.4].
d)The applicant as a person from a government controlled area, could obtain adequate protection from the Sri Lankan authorities if he believed that he might suffer harm at the hands of the LTTE [Decision 14.5].
e)The applicant was an unreliable witness whose claims at best disclosed involvement in criminal activity (selling banned goods to a terrorist organisation, the LTTE), which was devoid of connection with the Refugees Convention [Decision 15.3].
For the present purposes, it is convenient to set out the issues relied upon by the applicant in support of the application which it is noted are set out in a document entitled "Applicant's notice of contentions of fact and law" filed 3 March 2004. That document annexed a number of other documents sought to be relied upon by the applicant. The applicant further refers in that document to other documents which became an exhibit identified in the transcript as exhibit A1. For present purposes, it is not necessary to refer in detail to the additional documents.
The issues raised in this application for and on behalf of the applicant include in brief terms the following:
·Denial of procedural fairness because document CX17422 entitled "Trail of Blood" was not included in the part B list of documents and was not drawn to the attention of the applicant until publication of the RRT decision.
·The applicant was denied procedural fairness because he was not provided with part B document CISNETCX24979 until 29 October 2003, which document is adverse to his claim.
·A document was denied procedural fairness because of the difficulties with the interpreter and was refused permission to adjourn the matter to submit a further written submission.
·By being refused the adjournment, the applicant was denied the chance to lead evidence that would clear up the confusion arising out of the difference in dialect between the interpreter and himself.
·There is no evidence upon which the court could act in terms of his criminal activity because the tribunal drew this inference from the letter sent by his mother but believed she had fabricated the letter to bolster his claims.
An additional ground of appeal was sought to be relied upon, namely, as follows:-
·That it was not open to the tribunal on the evidence to make an adverse finding as to the applicant's credibility.

Denial of procedural fairness, document CX17422 "Trail of Blood"

A document referred to in this ground was an article from the Straits Times in Singapore dated 25 October 1994, approximately three years before the applicant came to Australia and five years before the Tribunal hearing. I accept the submission on behalf of the respondent that that document is not referred to in the delegate's submission, either directly or in part there otherwise in the body of the decision, though appears for the first time in the Tribunal decision. The Tribunal decision does not suggest the document was brought to the applicant's attention. I accept, however, that as the document was not in the Part B section of the delegate's decision in this case is clearly distinguishable from the decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (Muin).
In Muin the Part B document was then said to be favourable to the applicant and each applicant claimed to have been misled because he or she thought that the tribunal had read the document in question. In the present case the document is claimed to be unfavourable, but in any event I accept as submitted by the respondent that as it was not in part B the applicant cannot say that he was under any misapprehension that the Tribunal had read the document. The document, unlike Muin, was not of the nature of submissions from the Department and was indeed entirely different. I accept it was simply a newspaper article in the public domain. It was used by the Tribunal as a source of information that the UNP candidate in the presidential election was assassinated in October 1994. I accept that that information was public domain knowledge and it does not appear to me that there is any practical consequence which flows from the failure of the Tribunal to provide the applicant with the document. Information of this kind on public record could not in the circumstances in my view provide a basis upon which it could properly be claimed that reliance upon that document may have altered the outcome of the decision had the document or the information contained in it been brought to the attention of the applicant (see Re Refugee Review Tribunal; ex parte Aola (2000) 204 CLR 82 per Gleeson CJ at 88, per Gaudron and Gummow JJ at 116 [80], McHugh J at 122 [104] and Kirby J at 130 [131]). For those reasons advanced substantially in submissions made for and on behalf of the respondent this ground fails.

Denial of procedural fairness, document CISNETCX17422

That document was contained in part B of the delegate's decision, and converse to the situation in Muin, it is claimed by the applicant to be adverse to his claim. However, the document is not referred to or relied upon by the Tribunal. The Tribunal's decision does not refer to the decision of the delegate save for the interview. I accept as submitted by the respondent that there is no indication that the document was ever before the Tribunal. Hence, there is no basis for suggesting it had any bearing on the Tribunal's decision. It is very clear from the summary of findings by the Tribunal that its adverse decision against the applicant in turn rested upon a significant adverse assessment of the applicant's credit. Country information referred to in the newspaper article, that is, the document, did not appear to have any significance at all in determination of the applicant's credit. It is difficult therefore to discern any denial of procedural fairness arising out of the document and hence this ground should also fail.

Denial of procedural fairness, difficulties with interpreter and refusal to adjourn for submissions

During the course of the tribunal hearing it is clear, at least from the reasons, that an issue was canvassed in relation to the quality of the interpretation at the hearing. The following extract reveals the concern:-
“Subsequently his adviser took issue with some of the interpretation at the hearing, submitting that the applicant, though he had been asked whether he was a UNP candidate rather than an organisational worker. The applicant then stated he was a member of a committee but he did not know the name of the committee, nor its secretary. He stated the UNP office was Gampola Road.”
The tribunal then further deals with the issue in the following extract (page 8) where it states the following:-
“At the hearing, the Applicant's adviser sought time in which to make further written submissions, as he suspected the interpreting had been inadequate. He explained that he spoke Tamil and discussed three areas in which he believed there had been faulty interpreting, regarding the proper pronunciation of the name of Mr C, the nature of the Applicant's 'official' involvement with the UNP and the proper translation of the word 'committee'. These issues were discussed with the Applicant at the hearing and the Tribunal is satisfied that the Applicant understood the issues and that they were properly resolved. In the case of correctly pronouncing the full name of Mr C, it is clear that both the Applicant and the Tribunal were referring to the same person. The adviser was unable to specify further errors in translation and asked to be given time to go through the tape recording of the hearing to search for such suspected errors.
It is apparent in using interpreters that there is some room for disagreement about the precision of the words used. What is essential, however, is communication that enables an applicant to understand what is being asked and to appropriately respond. The Tribunal is satisfied that occurred in the present matter. At the hearing, the Applicant was able to appropriately respond to the Tribunal's questions and his answers not only reflected an understanding of the questions but were in line with his written submissions. The Applicant spoke some English and the adviser said he spoke Tamil and they were invited by the Tribunal to seek clarification if they believed the interpreting to be inaccurate. They raised two issues that were resolved at the hearing. In the issue regarding the proper interpretation of the word for 'committee' it was clear to the Tribunal that the interpreter had used the word the Applicant's adviser had said was correct, notwithstanding that another word may have also been used.
The Tribunal is satisfied that the Applicant had a fair and reasonable opportunity to present his case and that the standard of interpreting was sufficiently adequate to enable him to do so. His adviser agreed that there was no other specific issue on which written submissions needed to be made, as no new issues had arisen at the hearing. In the circumstances, the Tribunal determined not to grant an extension of time for further submissions, mindful of the requirement to be quick and economical, as well as fair and just …”
It is clear from the extract set out above that the TRIBUNAL was cognisant of the concerns in relation to interpretation. It had, in my view, dealt with them appropriately. There is no material before this court which would demonstrate what might be regarded as any adverse outcome following the difficulties with the interpretation, nor is there any material before the court to suggest what may have been the outcome had there been an adjournment granted. It is indeed for the applicant to show in a matter of this kind that he has been denied the opportunity to properly present his case. In any event, the issues raised in the context of difficulties perceived with the interpreter do not appear to detract from the significant adverse findings made in relation to the applicant concerning his role with the UNP as that assessment was made on the basis of the applicant's credibility regardless of whatever position he may have held or whatever position may have been described by the interpreters which the applicant then held. Accordingly, this ground should fail. Likewise, any ground concerning failure to provide an opportunity to clarify confusion with dialect should also fail.

No evidence upon which the tribunal could infer the applicant engaged in criminal activity, mother's statutory declaration

In the course of the submissions made for and on behalf of the applicant reliance was placed upon the authority of VAS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 350 at paragraphs 23-25. However, it is submitted by the respondent and I accept that that case is not authority for the proposition advanced that there was no evidence upon which the tribunal could act in terms of criminal activity because the TRIBUNAL drew the inference from a letter sent by his mother, though believed it was fabricated to bolster his claims. The tribunal decision when dealing with this matter states:-
“… The Tribunal is satisfied that the Applicant's mother concocted the information in her statutory declaration to bolster the Applicant's claims to be a refugee. Even if the information is accurate, or she believes it to be accurate, it only leads to the conclusion that the Applicant is wanted for profiting from the sale of banned goods to the LTTE. In those circumstances, the Tribunal is satisfied that the authorities want the Applicant for reason of his illegal activities in assisting and profiting from a banned terrorist organisation and not for reason of his political opinions. Even if the authorities believed the Applicant to be a political supporter of the LTTE, the Tribunal would conclude that the authorities would be motivated to detain and question him for reason of his illegal activities, regardless of his political opinions.”

I accept that finding was enough to dispose of the applicant's mother's declaration for all relevant purposes. Nevertheless, the tribunal then went on to draw conclusions on the basis of making a finding in the applicant's favour, and in the circumstances that reasoning in my view was reasonably open to the Tribunal and I can detect no error. Hence, this ground fails.

Additional ground, adverse findings on credit not open

It is not necessary for the court to recite authorities in support of the proposition that in general if a finding is not open on the evidence, then it cannot stand. In the present case, however, a proper reading of the Tribunal decision clearly indicates that there are a number of matters where the tribunal did not accept the applicant to be a witness of truth and reliability. That assessment of credit is what is often regarded as a matter for the tribunal par excellence. In the circumstances and on a proper reading of the Tribunal reasoning, I cannot see any basis upon which this ground could succeed and hence it should fail.

Extension of time

Having analysed the grounds relied upon and concluded that they are not grounds which can succeed, it is my conclusion that the applicant does not have an arguable case. Having reached that conclusion, I am satisfied that in the exercise of the court's discretion, it would not be appropriate to grant an extension of time. Hence, even if I were to be satisfied that there was some reasonable basis upon which the court could conclude that the delay could be explained or that otherwise the court were minded to grant an extension of time, that does not overcome the fundamental difficulty in this application that the grounds relied upon do not in my view provide a proper basis upon which the court could reach a favourable conclusion or indeed do not provide material upon which this court could conclude that the applicant has an arguable case. In the absence of an arguable case, it is appropriate in my view that an extension of time be refused. In any event, even if the court were minded to grant an extension of time, on the basis of the court's analysis of the grounds relied upon the substantive application would be dismissed. Out of an abundance of caution it is appropriate that I refuse the application to extend time and/or in the alternative otherwise dismiss the application with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 28 July 2005