M163 of 2003 v Minister for Immigration
[2004] FMCA 153
•15 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M163 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2004] FMCA 153 |
| MIGRATION – High Court application for constitutional writs, declaratory and injunctive relief remitted to the Federal Court and transferred to the Federal Magistrates Court – whether arguable case. |
Migration Act 1958
Muin v Refugee Review Tribunal (2002) HCA 30 (2002) 190 ALR 601
Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 (Unreported decision of Marshall J
8 December 2003)
R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952)
1 All ER Rep 122
Re Minister for Immigration and Multicultural Affairs; ex parte “A” (2001) 185 ALR 489
| Applicant: | APPLICANT M163 of 2003 |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL |
| File No: | MZ 42 of 2004 |
| Delivered on: | 15 June 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 February and 18 March 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr. Mosby |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for order nisi is refused.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 42 of 2004
| APPLICANT M163 of 2003 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
Introduction
This application was initially listed before the court together with a number of other applications on 24 February 2004. On that date Mr Hay of counsel as a courtesy to the court advised that he had previously been appointed as pro bono counsel pursuant to order 80 of the Federal Court Rules by order made by Kenny J on 10 November 2003. The order made for pro bono assistance was confined to the preparation of a statement of contentions of fact and law, including a short statement in relation to a proposal to transfer the proceedings from the Federal Court to the Federal Magistrates Court. Mr Hay did not purport to appear for and on behalf of the Applicant when the matter was listed before this court on 24 February 2004. The Applicant did not appear in person.
The hearing proceeded in the absence of the Applicant, though the court indicated it would take into account the statement of contentions of fact and law filed for and on behalf of the Applicant by Mr Hay on 1 December 2003. Counsel for the Respondent made brief submissions responding to the matters raised in the Applicant's statement of contentions of fact and law. A number of submissions were made which might be regarded as “generic” to all applications then listed before the court that day. Mr Hay advised the court that he had not been able to contact the Applicant at that time. Despite the absence of the Applicant, I was prepared to consider the written submissions prepared on his behalf by pro bono counsel and to the extent necessary require the Respondent to address matters raised in those submissions.
When the matter was listed again on 18 March 2004 the Applicant appeared in person. He indicated to the court that he had not then prepared any further material and the court ordered the Applicant to file and serve any further statement of contentions of fact and law by 25 March 2004 and the Respondent to file and serve any submissions in reply by 1 April 2004, with the court reserving its decision and the matter to be decided on written submissions. By letter dated 28 March 2004 addressed to the court, the Applicant sought further time to prepare what he described as “my next hearing.” It was obvious by that time that he had not realised that the period of time had elapsed for him to file and serve any further statement of contentions of fact and law and/or then receive a copy of the order despite the fact that he was present in court when the order was announced. In any event, on
31 March 2004 the court varied the orders it had made on 18 March 2004 by extending the time for the Applicant to file and serve any further statement of contentions of fact and law to 14 April 2004. The Respondent was then given an extension of time to 20 April 2004 in which to file and serve any submissions in reply. The court subsequently received a document entitled “Submission” on 14 April 2004 from the Applicant which contained the following attachments:-
i)submission of S.D. Hay, pro bono counsellor;
ii)additional comments to S.D. Hay's barrister's submission;
iii)facts of the applicant;
iv)violence in Sri Lanka (newspaper reports);
v)additional country information provided by the solicitor.
The Respondent did not seek to reply to the Applicant's submission filed on 14 April 2004. Hence, the decision of the court was reserved on that day with the court deciding the matter on the written submissions received from the Applicant and the submissions otherwise made by the Respondents.
In the present application it is clear that this was one of a number of matters dealt with as a group which had common features or generic issues relevant to each application. The proceedings all relate to visa applications under the Migration Act 1958 (the Migration Act).
In each application the Applicants had initially commenced proceedings in the High Court of Australia seeking declarations or writ of prohibition or for an injunction or for orders in the nature of certiorari or mandamus against the Respondents. The Applications have been remitted by the High Court of Australia to the Federal Court of Australia. Each relates to applications for protection visas refused by the Refugee Review Tribunal (the RRT). Each case joined in representative proceedings in the High Court in an application which became known as Muin v Refugee Review Tribunal (2002) HCA 30 (2002) 190 ALR 601 (Muin).
This application was transferred by the Federal Court of Australia to the Federal Magistrates Court. In the present application orders were made by Marshall J on 13 October 2003 in the following terms:-
“1.The application for an order nisi and the hearing of return of the order nisi, if granted, be conducted as a single hearing.
2.The applicant(s) file and serve:-
(a) a statement of contentions of relevant facts and law setting out:
(i) particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought; and
(ii)if the applicant(s) require an extension of time in which to file this application, the reasons why an extension of time should be granted; and
(iii)if the applicant(s) has previously sought judicial review of the Refugee Review Tribunal decision the subject of this application, the reasons why res judicata or issue estoppel does not apply or why Anshun principles should not apply; and
(b) any affidavits which the applicant(s) intends to rely on at the hearing;
on or before 17 November 2003.
3.The directions hearing be adjourned to a date to be determined by the docket judge.
4.In the event that Order 2 is not complied with, the applicant(s) will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.
5.There be liberty to apply on two days' notice.
6.Costs be reserved.”
The primary argument of the Respondent is that the application should be refused on the basis that the Applicant have failed to discharge the necessary evidentiary burden. In the alternative, it is claimed that as a result of noncompliance with order 2 of the orders made by Marshall J, the application should be refused on the basis that the Applicant has not complied with that order and in a sense has not shown cause why the matter should not stand dismissed.
Relevant Law
During the course of submissions counsel for the Respondents referred the court to the decision of the Federal Court of Australia in Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 (Unreported decision of Marshall J 8 December 2003) (M115). In that case, when dealing with the issue of claimed failure to give an Applicant an opportunity to comment on country information before it made its decision, the court stated the following:-
“18 There is no indication in the reasons of the RRT that it gave the applicant an opportunity to comment on the country information before it made its decision. However, in the absence of any affidavit material from the applicant it is impossible to know whether it would have made any difference to his case if he had received prior notice of the country information referred to by the RRT.
19 As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at [37]:
‘Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’
20 In Lam, the Chief Justice said at [38]:
‘No practical injustice has been shown. The applicant lost no opportunity to advance his case. ...It has not been shown that there was procedural unfairness.’
See also per McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149].
21 Similarly in this case the applicant has not shown what he would have said if the RRT had given him the country information to comment upon, assuming (without knowing) that it did fail to do so. The applicant said, in his oral submission today, that he is currently unable to get information from Sri Lanka. That is not the point. The issue is what he would have said to the RRT prior to its decision being given in 1997 or what he would have done if he had been shown the relevant country information before the RRT's decision.”
It is also relevant to note the reference by Marshall J in M115 to the issue of an extension of time where his Honour states the following:-
“9 The first question which arises under O 20 r 2 is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to file his application. I consider that it would be futile to grant the relief claimed against the first respondent. As Gray J said, in respect of a materially identical plea for relief in Re Batuwantudawa [2003] FCA 684 at [14]:
‘...the claim in the draft order nisi for prohibition is limited to the matter designated by its proceeding number in the Tribunal. The Tribunal has completed its dealing with that proceeding. There is nothing left to prohibit.’
10 The next question which arises is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to apply for certiorari. In that context it may be observed, as Gray J did in Batuwantudawa at [7], that no request is made for mandamus which might result in the redetermination of the application in the RRT.
11At [8] in Batuwantudawa Gray J said:
‘The time limited by the rules of the High Court for an application for certiorari is fixed by O 55 r 17 of those rules. An application must be made not later than six months after the date of the decision concerned. Of course, that is subject to the general power in O 60 r 6 of the High Court Rules to enlarge any of the time appointed by the rules. It falls to this Court to exercise that power of enlargement, if it is to be exercised, as a result of the remittal of the proceeding to this Court’.”
I accept that for the reasons given by Gray J in a case cited by Marshall J, namely, Re Batuwantudawa, that the proceeding for an order nisi for prohibition cannot possibly succeed as having been the subject of an RRT decision, there is nothing left to prohibit.
I further accept that it is relevant in considering the discrete issue of a claimed failure to give the Applicant an opportunity to comment on country information, that as stated by Marshall J, a court is entitled to consider the absence of any affidavit material from the Applicant and it is relevant to then conclude that in the absence of any relevant material, it is impossible to know whether it would have made any difference to the Applicant's case if prior notice of country information referred to by the RRT had been given to the Applicant. I further accept that it is appropriate for the court to consider the general issue of whether any practical injustice has been shown.
In this application before the court it is important to remember that Applicant seeks constitutional relief and has evidentiary burden to adduce evidence in support of the application. I note in particular the reference to Denning LJ in R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952) 1 All ER Rep 122 where he states at page 131 the following:-
“When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.”
I also note a reference to Kirby J in Re Minister for Immigration and Multicultural Affairs; ex parte “A” (2001) 185 ALR 489 where in referring to a denial of opportunity to place material before the tribunal, his Honour states at page 501 the following:-
“Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.”
Background
In this application the Applicant lodged an application for a protection visa on 14 March 1997, having arrived in Australia on 29 September 1995 on a student visa. On 4 July 1997 the application was refused by the first Respondent's delegate (“the delegate's decision”). On 15 July 1997 the Applicant sought a review by the Refugee Review Tribunal (the RRT) of the delegate's decision. A hearing before the RRT occurred on 24 February 1999 and at that hearing the RRT received written submissions and heard oral evidence from the Applicant. On 11 March 1999 the RRT affirmed the delegate's decision not to grant a protection visa to the Applicant. The Applicant jointed the Muin cases heard by the High Court of Australia in August 2002 whereby he was given special leave to lodge an application in the High Court of Australia on or before 31 May 2003. It is not clear when the Applicant joined the class action before the High Court.
It is useful to refer to paragraph 38 of the statement of contentions of fact and law prepared by Mr Hay for the Applicant where it is claimed that the tribunal erred by failing to provide the Applicant with opportunities to rebut unfavourable material. Reference was made to a range of what is described as “extraneous material.” In particular, reference was made to cable CL38234 of 15 December 1995 from the Australian High Commission in Colombo, a US State Department Country Report on Human Rights Practices for 1995 as evidence that any violence perpetrated was not systematic. A further US State Department Country Report on Human Rights Practices for 1997, January 30, 1998, referring to the constitutional right of citizens to challenge their government through periodic multi‑party elections and issues concerning violence and electoral fraud. It is noted that amongst the material there is also reference by the tribunal to the Department of Foreign Affairs and Trade (“DFAT”) advice of 22 April 1996 and a further DFAT cable of 30 December 1996. Another report cited was the US State Department Country Report on Human Rights Practices for 1997, January 30, 1998, and a DFAT cable CL824 of 20 February 1998.
It was submitted on behalf of the Applicant that that material was accepted by the tribunal instead of the Applicant's direct evidence and collectively “formed the basis of the tribunal's rejection of the Applicant's claim.” It was submitted that, “Clearly, it would have been in the Applicant's interests to attempt to rebut such information, or to lead contradictory evidence in support of his primary claims.” It was further submitted that this was a clear error and a serious breach of the principles of natural justice and/or that the failure constitutes jurisdictional error on the part of the tribunal member which invalidates the reported decision. It was submitted that it was noteworthy there is no reference within the tribunal's reasons of any attempted rebuttal of adverse “country information” by the Applicant. That absence lends weight to an inference that no or not adequate opportunity was afforded to the Applicant to rebut unfavourable material as would ordinarily be the case.
When the Respondent made submissions in the absence of the Applicant or Mr Hay on 24 February 2004 the submission was very brief. At that time there was no affidavit material provided by the Applicant, and accordingly it was submitted that there was nothing to suggest what the Applicant would or could have done if those matters of concern, paragraph 38 of the statement of contentions of fact and law of the Applicant, had been raised. It was further submitted that a proper reading of the RRT's decision would lead to the conclusion that the Applicant's claim was not rejected solely by reference to country information in any event, but in part because of the Applicant's found profile. It was not disputed, however, in this case that the RRT did rely in part upon the country information and to that extent is similar to the decision of Marshall J in M115 referred to earlier.
In the Applicant's additional comments to the submissions made by Mr Hay, it is clear that he seeks to challenge findings of fact, and the matters raised in that document do not, in my view, relate to material relevant to this application save for reference to the issue of country information. He claims that:
“The additional items of country information provided by the solicitor dated 30 October 2003 and 6 November 2003 were not given to me, to submit at a Refugee Review Tribunal hearing and, did not have the opportunity to comment on those documents.”
Given that the hearing occurred well before that date, it is difficult to see the relevance of that material in the application before this court. The Applicant otherwise provided what is referred to as a document being “facts” which purports to be a signed five‑page document from the Applicant together with other country reports.
Hence, the only affidavit material on file would appear to be an affidavit from the Applicant which was filed on 26 May 2003 in the High Court of Australia. No affidavit material has been filed pursuant to the orders made by Marshall J on 16 October 2003.
In my view, the tribunal in the present case clearly took into account, in part, country information and in the absence of any material to the contrary, I am prepared to infer that the specific country information was not presented to the Applicant in order to enable him to comment prior to the delivery of the RRT decision.
The tribunal made further findings rejecting the Applicant's claim, also based in part upon what it describes as the Applicant's profile. Specifically it found “that the Applicant was involved with the UNP but the level of his involvement has been exaggerated in the presentation of the claims.”
In relation to the issue of claims of harm, the tribunal further did not accept that the Applicant was physically assaulted as claimed in the hearing, though it did accept that he may have been involved in physical skirmishes and threatened with violence around election time as claimed. It otherwise did not accept that the Applicant went into hiding, nor that he received death threats or exhortations from his mother not to return home as claimed. It is not necessary to further analyse the detail leading up to those findings. It is sufficient to note that those findings provide a further basis upon which the tribunal reached its decision.
In the absence of affidavit material, it is my view that this case is similar in many respects to M115 referred to earlier in this judgment. Whilst there is no indication in the reasons of the tribunal that it gave the Applicant the opportunity to comment on country information before making its decision, it is almost impossible for this court to determine in the absence of affidavit material whether it would have made any difference to the case if the Applicant had received prior notice of the country information.
In applying the principles referred to earlier in this judgment in relation to the issues of fairness and practical injustice, I am satisfied in the present case that there has not been in a practical sense procedural unfairness or denial of natural justice. The Applicant had the opportunity of being heard and presenting arguments before the tribunal. The hearing was conducted with the assistance of an appropriate interpreter and it was clear from the detail of the Applicant's initial written submissions referred to under the heading “Claims in Evidence” by the tribunal that the Applicant is a person who clearly had the capacity to present his case appropriately to the tribunal. As indicated, there is insufficient material before me that would persuade me to accept that the lack of opportunity to comment on country information has had any practical adverse impact upon the Applicant's claim and am I satisfied that had the opportunity been given to the Applicant to make comment on the country information, it would have made any difference to the outcome.
I am satisfied in the present case that there is no arguable basis for the application. I accept the Respondents submissions that there has been a failure in this application by the Applicant to discharge the necessary evidentiary burden and/or in any event a failure to comply with the orders made by Marshall J referred to earlier in this judgment. The Applicant has not provided material of a kind which would enable this Court to grant the order nisi sought.
For those reasons it follows that the appropriate orders of the Court will be as follows:-
(1)The application for order nisi is refused.
(2)The Applicant shall pay the First Respondent’s costs fixed in the sum of $2,000.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 15 June 2004
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