M105 of 2004 v Minister for Immigration
[2005] FMCA 1289
•30 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M105 of 2004 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1289 |
| MIGRATION – Application for extension of time refused – no arguable case – no jurisdictional error. |
| Migration Act 1958, s.417 |
| Applicant S1174 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 289 Applicants S61/2002 v RRT (2004) FCAFC 150 |
| Applicant: | APPLICANT M105 OF 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1263 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 30 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2005 |
REPRESENTATION
| Applicant: | In person (with interpreter by audio link) |
| Counsel for the Respondent: | Ms J. MacDonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Applicant shall be granted leave nunc pro tunc to add as a Second Respondent the Refugee Review Tribunal in lieu of the Second and Third Respondents.
The Second Respondent shall file and serve a Notice of Address for Service by 2 September 2005.
The Application for extension of time is refused.
The Application is otherwise dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $7,900.00.
The parties are granted liberty to apply in relation to the issue of costs provided any application made is filed on or before 6 September 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1263 of 2004
| APPLICANT M105 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In the application before the court it is necessary to consider the chronology of events which have been set out in some detail both in the respondent's contentions of fact and law and also affidavit material filed and served by the respondent. In particular it is noted in this application that, at the commencement, the court made orders of a preliminary nature in the following terms:
“1.That the applicant is granted leave to insert Refugee Review Tribunal as second respondent, nunc pro tunc, in lieu of the respondents named as second and third respondents.
2.That the second respondent should file and serve a notice of address for service by 2 September 2005.”
Hence when I refer to the respondents in this judgment there are now the first and second respondents though, for practical purposes, it is the first respondent namely the Minister for Immigration & Multicultural & Indigenous Affairs to whom reference will be made. The chronology, as indicated, is set out in some detail in the material to which I have referred.
The applicant is a national of Sri Lanka. She arrived in Australia on
21 March 1999 on a visitor's visa. On 6 May 1999 the applicant lodged an application for a protection visa under the Migration Act 1958 (the Act). On 16 August 1999 a delegate of the Minister refused the application for a protection visa. The applicant then applied to the Refugee Review Tribunal on 20 September 1999 for review of the delegate's decision. The RRT affirmed the delegate's decision on
19 December 2000.
It is noted, for the present purposes, that the RRT decision was handed down on 12 January 2001 and the applicant was notified by a letter dated 12 January 2001 and, applying the relevant provisions of the Act, I accept that it is deemed to be received by the applicant on 23 January 2001. Those dates are significant for reasons which will become apparent.
On 8 February 2001 the applicant commenced proceedings and was then represented by a solicitor in the Federal Court of Australia seeking judicial review of the decision of the RRT. On 27 April 2001 the applicant discontinued those proceedings and then made application to the minister, pursuant to s.417 of the Act. On 17 August 2001 the applicant joined, what are described as the ‘Muin and Lie’ class action, in the High Court of Australia and subsequently filed for an order nisi in the High Court again with the benefit of legal assistance.
That matter was remitted to the Federal Court where it became proceeding number N1156 of 2003. It was dismissed as one of a number of other proceedings by Emmett J on 20 February 2004 (see Applicant S1174 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 289. On 15 March 2004 the applicant sought leave to appeal against a decision of Emmett J. Leave was refused by Jacobson J on 4 May 2004 (see Applicant S1135 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 581).
On 24 May 2004 the applicant again commenced proceedings in the High Court of Australia seeking an order nisi. On 23 July 2004 Hayne J of the High Court remitted the application to the Federal Court of Australia in which it was transferred to this court by order of Kenny J made on 28 September 2004.
The background in relation to the claim made by the applicant was set out by the RRT which had invited the applicant to attend a hearing when evidence was given. It's noted that under the heading, ‘Background and Claims’, the following appears in the RRT decision:
“The applicant is a national of Sri Lanka who resided in Colombo. She is Sinhalese and aged 49 years. She undertook a secondary school education in Sri Lanka and worked there as proprietor of confectionary business. She arrived in Australia in March 1999 on a visitor visa.
The Tribunal had available to it information on the Departmental and Tribunal files, and country information referred to below.
The applicant gave evidence that her father and other family members are well‑known supporters of the United National Party (UNP). She claims that she campaigned for a member of the municipal council. She said that her activities included handing out leaflets, recruiting members and making her house available for meetings.
She claims that she was reviled by members of the opposition parties. She claims that she received anonymous telephone calls of a threatening nature. She claims that she was given signs that she was marked for annihilation. She also claims that in mid-March 1999 a gang of thugs caused extensive damage to her house. She claims that they told her to cease her political activity. She gave evidence that when she reported her problems to the police they took no action.
The applicant also claims that an employee was assaulted on another occasion, some time in 1996. She said that the event occurred after the young man enquired about her and became angry upon being informed she was not present. She said that she continues to be fearful as she lives alone.
The RRT considered the claims made by the applicant. Indeed, on a proper reading of the RRT decision it makes significant findings that the claims made by the applicant were implausible. A proper reading of the decision however leads me to the conclusion that, whilst accepting that the applicant and other members of her family have been prominent with the UNP as claimed, it was not otherwise satisfied - having considered all the material, including country information - that in this instance the applicant was a refugee, and accordingly it affirmed the decision not to grant the applicant a protection visa.
In this application the applicant, by affidavit sworn 24 May 2004, effectively seeks an extension of time, or what is described in the affidavit as enlargement of time, to permit the application to be brought before this court. I will deal with the chronology of events which clearly indicate the need for an extension of time to be considered.
Essentially relying upon the material referred to earlier it is clear that the date upon which the applicant is deemed to have received the letter notifying her of the decision of the RRT was 23 January 2001. It would appear that her first application to the High Court was 17 August 2001 and there is a further period of delay between the date of the decision of Emmett J on 20 February 2004 and the second order nisi sought, which ultimately was remitted to this court, namely on 24 May 2004. Nevertheless in her affidavit in support of the second order nisi the following appears in paragraph 12:
“For the reasons set out above, I believe that this honourable court should grant, by necessary application, for an enlargement of time and permit me to bring the present application for review. There is no other avenue of review available to me. I have consistently acted promptly in accordance with legal advice in pursuing my application for a protection visa. I believe that to grant enlargement of time will cause no prejudice to the respondents and I believe it is necessary in the interests of justice.”
The preceding paragraphs of that affidavit set out the chronology to which further reference will be made in this judgment but otherwise it provides, in my view, no further detail explaining the delay. It is clear to me an extension of time is required based on the time frames. It is not necessary for me to refer in detail to the time limits imposed save to say that in this matter I am satisfied that I do not need to consider time limits which may apply to a writ of prohibition remedy sought by the applicant as I am satisfied, having regard to relevant authorities, that that remedy is not appropriate.
I am further satisfied that the applicant is otherwise outside time limits which would apply to the other remedies sought, including the writs of mandamus and certiorari. I am further satisfied that in matters of this kind the time limits applicable in the High Court apply to this court. In considering the issue of whether or not the court should grant an extension of time, which I am satisfied it is required to consider in this application, it is appropriate for the court to consider amongst other things any reasons that may be advanced for delay and, perhaps more importantly in this instance, whether or not there is an arguable case.
In the application for order nisi, an affidavit in support of the application, and in oral submissions made before this court this day there is really no attempt to identify any error in the RRT's decision. Likewise, the contentions of fact and law dated 6 January 2005 does not appear to identify any error, including any jurisdictional error.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
I should add however that there is a reference in the applicant's contentions to the decision of the RRT not being made in a bona fide attempt to exercise power. However, on my reading of the claim and evidence and the reasons of the tribunal's decision, I can see no basis at all upon which it could be asserted that there is a lack of what is described as bona fides.
Apart from that reference there does not appear, in my view, to be any reference to any issue which would provide a proper basis upon which this court could conclude that there is any error in the RRT's decision. I conclude therefore that there is indeed no arguable case. To the extent that I am required to then proceed further I am otherwise satisfied that, in the circumstances, there is insufficient material which would satisfy me that there are any reasonable grounds provided by the applicant explaining the delay in this matter.
In the alternative, even if I were so satisfied that there is some reasonable basis upon which there has been a delay as indicated earlier, I am not satisfied on a reading of the decision in this matter that there is indeed any arguable case. It is not for the court to examine the decision in claims in evidence in such detail as to then seek to provide grounds, or a basis upon which error can be identified. The chronology of events in this application clearly reveals that at least since May 1999 issues have been agitated for and on behalf of the applicant in the High Court, the Federal Court and indeed now in this court.
There has, over a period now of some five years, been more than adequate opportunity for the applicant to provide material upon which it could at least be suggested there is an arguable case. It is clear, on the material before me, that the process followed by the applicant, whilst perhaps not yet providing a basis upon which the court could conclude this is an abuse of process, clearly provides a base upon which the court would otherwise be satisfied that there is, indeed, no arguable case and would be inclined to dismiss the matter summarily.
However, the respondent has simply sought orders that upon a finding that there is no arguable case the court should proceed to refuse to grant to the applicant an extension of time. It has been further submitted that the court should otherwise dismiss the application rather than simply make an order that the order nisi be refused. In my view it is clear that on the material before me that there is no proper basis upon which an extension of time can be granted. Deeming as I have the applicant's affidavit, sworn 24 May 2004, to be effectively an application for extension of time, I am prepared to order that the application for extension of time be refused.
That leaves for the court's consideration the question of whether or not, in the absence of any arguable case, it is more appropriate for the court to refuse the order nisi or indeed whether I should make, by way of a final order, an order dismissing the application. In my view the preferred approach for matters remitted from the High Court is not necessarily to proceed to determine whether the order nisi is allowed or refused but, rather, where the court is minded to refuse the application to make a final order dismissing on the merits, then the applications for writs of certiorari and mandamus should be dismissed; and the dismissal, so there be no misunderstanding, is intended to be an order dismissing finally the matter on its merits.
The preferred approach for matters remitted from the High Court is not necessarily to proceed to determine whether the order nisi is allowed or refused but rather, where the Court is minded to refuse the application to make a final order dismissing the application for writs of certiorari and mandamus on the merits.
I apply the decision of Branson J with whom Moore J and Emmett J agreed (See Branson J in Applicants S61/2002 v RRT (2004) FCAFC 150 where the Court states as follows:-
“36 The application that his Honour intended to dismiss,
I conclude, was an application for writs of certiorari and mandamus. That is, his Honour dismissed the application for writs of certiorari and mandamus that the appellants had commenced in the High Court, pursuant to O55 r 1(1) of the High Court Rules, by applying in the first instance, as O 55 r 1(2) requires, for an order calling on the proposed respondent to show cause why the writs should not be issued.
37 In NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 (‘NAHQ’) Whitlam and Keifel JJ considered a purported appeal against a judgment relevantly identical to the judgment the subject of this appeal. Their Honours at [2] noted that the primary judge did not advert to O 51A r 5 and concluded that ‘it may be accepted that he heard the application as if it were an application for final relief’. However, at [3] their Honour’s said:
‘Nonetheless, no order nisi was made and the only application formally before Wilcox J remained one for such an order. An order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180. The order pronounced by Wilcox J can only be regarded as such an order. The High Court has again recently emphasized that an order’s legal effect determines whether it is interlocutory: In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70. The appeal is thus incompetent.’
The third member of the Full Court in NAHQ, Moore J at [6] said:
‘I entertain some doubts whether the judgment to which this appeal relates, was interlocutory. Existing authorities concern procedures which do not correspond with O 51A r 5 of the Federal Court Rules. That rule results in the determination of a claim for constitutional writs even though it is in the procedural context of an application for an order nisi. However, as Whitlam and Kiefel JJ have concluded it was an interlocutory judgment, it is probably sufficient for me to say that if leave was necessary, I would refuse leave for the reasons given by their Honours. If it was not necessary, I would dismiss the appeal for the same reasons.’
38 In Applicant S422 of 2002 v MIMIA [2004] FCAFC 89 (‘Applicant S422’) Dowsett and Lander JJ with North J preferring not to express a view on the issue at [35]-[36] said:
‘One further matter requires comment. Counsel for the Minister submitted that if the appellant did not require an extension of time in which to appeal, the order under appeal should be treated as an order refusing an application for an order nisi. Such orders have traditionally been considered to be interlocutory, therefore necessitating leave to appeal. See Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 389 at 390. It occurred to us in the course of argument that the terms of O 51A r 5 of the Federal Court Rules may have changed the nature of an application for an order nisi remitted to this Court by the High Court. That order provides:
"(1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:
(a)will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and
(b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.
(2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply."
We were referred to the Full Court decision in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297. The majority (Whitlam and Kiefel JJ) concluded that notwithstanding the provisions of O 51A r 5, a decision refusing an order nisi in a remitted matter was an interlocutory judgment and therefore not subject to appeal as of right. In the absence of any submissions to the contrary, we should follow that decision. Nonetheless we see some substance in the doubts expressed by Moore J in his reasons for judgment in NAHQ.’
39 In view of the different views given expression in NAHQ and Applicant S422, this Full Court is not, as it seems to me, restrained by the usual rule of deference from giving effect to its own view as to whether the judgment sought to be appealed from in this case is an interlocutory judgment or a final judgment.
40 As indicated above, I do not doubt that his Honour intended by his order to dismiss on the merits the appellants’ application for writs of certiorari and mandamus. In my view, no question arises as to the power of his Honour to make an order with the effect intended by his Honour. It does not matter, as it seems to me, whether his Honour is to be understood as having proceeded under an authority implicit in O 51A r 5, or under O 19 r 1 having impliedly waived the requirement for the filing of a notice of motion. However, for the reasons given above, I am satisfied that O 51A r 5 gave his Honour adequate authority to proceed as he did.”
The principles of Branson J were applied by Ryan J in M153 of 2003 v MIMIA (2005) FCA 251 who stated the following:
“5 However, in Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150, a Full Court of this Court made it clear that whether a single Judge or Magistrate has made an interlocutory order refusing to grant an order nisi for the issue of a prerogative writ, or has made a final order disposing of the whole "matter" in the sense of the justifiable controversy remitted by the High Court, is a question to be resolved by construing the order of the Judge or Magistrate with recourse, in the event of ambiguity, to surrounding circumstances including the published reasons for the order in question. I have read the careful reasons of Branson J (with whom Moore and Emmett JJ agreed) in S61 of 2002 and agree with her Honour that O 51A r 5 of the Rules of this Court gives a Judge, and, on remitter, a Magistrate, authority to make a final order dismissing on the merits an applicant’s application for writs of certiorari and mandamus where no order nisi has been granted.
In this matter for the reasons given it is my intention to make a final order dismissing, on the merits, the application.
Technically, it may be argued that before making a final order, the order nisi should be allowed and then not made absolute with an order made instead to dismiss the application. If that is so, then I am prepared to formally allow the order nisi, though then make a final order dismissing the application. It follows that in doing so, I am not prepared to make the order nisi absolute.
In my view therefore, having regard to the conclusions I have reached in relation to this applicant not being able to present an arguable case, and for the reasons given, it is appropriate that I make the following orders in addition to the preliminary orders set out earlier in this decision as follows:-
1)The Applicant shall be granted leave nunc pro tunc to add as a Second Respondent the Refugee Review Tribunal in lieu of the Second and Third Respondents.
2)The Second Respondent shall file and serve a Notice of Address for Service by 2 September 2005.
3)The Application for extension of time is refused.
4)The Application is otherwise dismissed.
5)The Applicant should pay the First Respondent's costs fixed in the sum of $7,900.00.
6)The parties are granted liberty to apply in relation to the issue of costs provided any application made is filed on or before 6 September 2005.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 August 2005
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