Nguyen Thanh Trong v The Minister for Immigration Local Government & Ethnic Affairs Nguyen Thanh Trong v Refugee Review Tribunal

[1996] FCA 405

CATCHWORDS

Courts - Practice and Procedure - Immigration - Function of Pleadings - Role of Court in respect of issues arising on evidence but not pleaded or argued - Whether incumbent upon trial judge to raise the issues - Consideration of discretionary factors involved in decision of trial judge to raise issues.

Migration Act 1958 s.411(3)(a) (previously s.166B(3)(a))
Federal Court Act 1976 Part IVA

Banque Commerciale SA En Liquidation v. Akhil Holdings (1990) 169 CLR 279.

VG292\94 NGUYEN THANH TRONG V. THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT & ETHNIC AFFAIRS

and

VG325/94 NGUYEN THANH TRONG V. REFUGEE REVIEW TRIBUNAL

MERKEL J.
MELBOURNE
17 MAY 1996

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION  No. VG 292 of 1994

BETWEEN:

NGUYEN THANH TRONG
  Applicant

and

THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT

& ETHNIC AFFAIRS
  Respondent

AND  No. VG 325 of 1994
BETWEEN
  NGUYEN THANH TRONG
  Applicant
  and
                  REFUGEE REVIEW TRIBUNAL
  Respondent

Coram:Merkel J.

Place:Melbourne

Date:17 May 1996

MINUTES OF ORDERS

1. Leave is granted to the applicant to apply within 7 days to the Court to amend the Applications herein to raise the following issues:

(a)Whether, upon the requisite belief of the Minister being formed under s.166B(3)(a) of the Migration Act 1958, the exercise of the power to issue a certificate is discretionary or mandatory?

(b)In considering whether to exercise the power conferred under s.166B(3)(a) was the Minister under a duty to give consideration to the individual circumstances relevant to each claimant for refugee status and if so, did he consider those circumstances?

(c)Do the rules of natural justice or procedural fairness apply to a decision of the Minister under s.166B(3)(a) and if so, were they complied with in the present case?

(d)If the Minister's decisions under s.166B(3)(a) are invalid, having regard to the statutory amendments made to the Act since 31 August 1994, -

(i)are the claimants entitled to a hearing and determination by the RRT of their  applications for review?

(ii)can the Minister issue a certificate under s.411(3)(a) (previously s.166B(3)(a)) in respect of an applicant who, prior to 1 September 1994, has applied for a review by the RRT of the decision in question?

(iii)what orders are appropriate in all the circumstances of the case?

1. I reserve the question of directions for the further hearing of the matter.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION  No. VG 292 of 1994

BETWEEN:

NGUYEN THANH TRONG
  Applicant

and

THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT

& ETHNIC AFFAIRS
  Respondent
AND  No. VG 325 of 1994
BETWEEN
  NGUYEN THANH TRONG
  Applicant
  and
                  REFUGEE REVIEW TRIBUNAL
  Respondent

REASONS FOR DECISION

THE FACTS
On or about 7 July 1994, 17 persons arrived in Australia on board a boat known as the "Vagabond". On 19 July 1994 they each claimed to be entitled to refugee status under the Migration Act 1958 ("the Act").

The claims were heard and determined under the Act by delegates of the Minister for Immigration Local Government and Ethnic Affairs ("the Minister"). By decisions made on 28 August 1994, 3 of the claimants were granted refugee status and the remaining 14 were refused refugee status.

On 29 August 1994 the Minister issued conclusive certificates under s.166B(3)(a) of the Act in relation to each claimant whose claim had been refused.

Section 166B(3)(a) provided as follows:

1. The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:

(a)it would be contrary to the public interest to change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia;

.....

Under s.166B(2), the effect of a valid certificate was to make the delegates' decisions non RRT-reviewable decisions. A non-RRT reviewable decision is not subject to review by the Refugee Review Tribunal ("the RRT"). If the certificate had not been issued the claimants would have been entitled to apply to have their claims reviewed by the RRT.

On 31 August 1994 the claimants filed applications for review by the RRT of each of the delegates' decisions. On  2 September the RRT ruled that, as a result of the conclusive certificates, it had no jurisdiction in the matter.

THE PROCEEDINGS
By two Applications issued in this Court, the applicant now seeks relief on his own behalf and on behalf of 10 of the other claimants who arrived on the Vagabond with him.

The first Application, which is brought under Part IVA of the Federal Court of Australia Act 1976, seeks orders for the review of the Minister's decisions under s.166B(3)(a) of the Migration Act and of the delegates' decisions.The review is sought under the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act 1903. The second Application which was also brought under Part IVA, sought relief including a writ of mandamus, in the event that the Court determined that the Minister's decision under s.166B(3)(a) was invalid.

The Applications also sought review under Part 8 of the Migration Act 1958 but, in the course of the hearing before me, it became clear that Part 8 came into operation after each of the decisions sought to be reviewed had been made. Consequently any limitations in Part 8 on the jurisdiction of this Court to review those decisions has no application to the present case.

The first Application, which has been amended from time to time, was divided into 3 parts. Part A relates to alleged "common grounds" of challenge to the delegates' decisions. Part B sets out the grounds on which the Minister's decisions to issue the conclusive certificate were to be challenged. Part C sets out "separate" grounds of challenge which each of the individual claimants wishes to pursue.

The matter was heard by me on 6, 7 and 8 May 1996. In the course of the hearing I expressed concern in relation to the procedure that was being followed. It had become apparent that, in reality, the only common issues of fact or law were:

(a)the challenges to the validity of the Minister's decisions and the consequences that may follow if the challenges succeed;

(b)whether a reasonable apprehension of bias arose, in relation to the delegates, as a result of certain ministerial and departmental statements that had been made concerning the claimants, prior to the decisions of the delegates.

It also became apparent that most, if not all, of the so-called, common grounds in Part A, were not common to the individual cases. Each decision was distinct, self contained and based on each individual claimant's allegations of persecution.

I gave directions that the matter proceed as a representative proceeding under Part IVA of the Federal Court of Australia Act on the two common issues of fact and law and that each of the 11 individual's claims be heard and determined individually. I directed that the hearing of the individual claims only proceed, at this stage, in respect of the applicant's claims for review of the delegate's decision that he was not a refugee.

At the conclusion of the hearing on 8 May I reserved my decision on the Part IVA claims and on the applicant's individual claims. I also indicated that I reserved the question of whether I would determine one of the alleged common grounds that did not arise in the applicant's case but which was dealt with by the parties in the case of Loan, another claimant.

If the applicant's challenge to the Minister's decision under s.166B(3) is successful, one of the claims for relief is for the issue of a Writ of Mandamus requiring the RRT to hear and determine the claimants' applications for review of the delegates' decisions. If that relief is granted then there would be little point in deciding the challenges to the decisions of the delegates as the RRT would rehear those matters. In the alternative, it was claimed that the matters should be remitted to the Minister to be determined afresh by him under s.166B(3)(a), (now s.411(3)(a)), in accordance with law.

MATTERS ARISING ON THE EVIDENCE IN THE PROCEEDING BUT NOT PLEADED OR ARGUED
A ground of review in respect of the Minister's decisions was that he failed to have regard to the merits of each case in determining whether to issue a conclusive certificate under s.166B(3)(a). However, that ground was "pleaded" in the first Application on the basis that the decisions were made in
accordance with a rule or policy or at the direction or behest of another person.

A further difficulty, for present purposes, was that that ground was argued primarily by reference to the precondition for the exercise of the power, being the Minister's belief, rather than by reference to the exercise of the substantive power itself.

The evidence before me suggested that the Minister may not have regarded the merits or circumstances of each case as relevant to the formation of the requisite belief or to his decisions. The evidence also suggested that the Minister made his decisions without any prior notice to the claimants or their representatives. Accordingly, I asked counsel for the applicant and the respondent whether the grounds of review involved the issue of whether the Minister was obliged to comply with, but did not comply with, the rules of natural justice. It seemed to me that that issue may have been linked to the allegation that the Minister did not have regard to the merits of each case.

Surprisingly, counsel for the applicant stated that that issue was not being raised. The primary case put by the applicant in relation to the conclusive certificates challenged the belief formed by the Minister under s.166B(3)(a).

Either scant or no attention was given in the Application and in the applicant's submissions to several issues which are raised by the evidence and which, on the tentative view I presently have, may be decisive in the present case. Needless to say correspondingly scant or no attention was given to those issues by the respondent. I say "needless to say" as there was no reason for the respondent to put submissions in respect of issues not raised or pursued by the applicant.

The issues are:

(a)Whether, upon the requisite belief of the Minister being formed under s.166B(3)(a) of the Migration Act 1958, the exercise of the power to issue a certificate is discretionary or mandatory?

(b)In considering whether to exercise the power conferred under s.166B(3)(a) was the Minister under a duty to give consideration to the individual circumstances relevant to each claimant for refugee status and if so, did he consider those circumstances?

(c)Do the rules of natural justice or procedural fairness apply to a decision of the Minister under s.166B(3)(a) and if so, were they complied with in the present case?

(d)If the Minister's decisions under s.166B(3)(a) are invalid, having regard to the statutory amendments made to the Act since 31 August 1994, -

1. are the claimants entitled to a hearing and determination by the RRT of their  applications for review?

2. can the Minister issue a certificate under s.411(3)(a) (previously s.166B(3)(a)) in respect of an applicant who, prior to 1 September 1994, has applied for a review by the RRT of the decision in question?

3. what orders are appropriate in all the circumstances of the case?

I should add, in the event that it is not apparent, that the issues are, to some extent, inter-connected. More importantly, each issue arises on the evidence adduced before me but either has not been raised at all or has been raised only indirectly in the course of the hearing.

The present matter, and the evidence adduced in it, was based on the Application in proceeding No. VG 292 of 1994. Under Order 54 Rule 2 of the Federal Court Rules and Form 56 of the First Schedule to the Rules, the Application was required to state the grounds of the application.

The challenges to the conclusive certificates rely upon 8 grounds, each of which was particularised. It serves little purpose to detail them. It is sufficient to say that in my view they do not raise, or at best, inadequately raise, the issues I have set out above.

The hearing was concluded on the basis that the grounds set out in the Application constituted the applicant's case.
PLEADINGS AND THE ADMINISTRATION OF JUSTICE - THE ROLE OF THE COURT
The dilemma facing the Court is whether to decide the issues on the grounds set out in the Application or on the grounds raised by the evidence.

If the former course is followed it may give rise to substantial injustice to the claimants whose cases may be decided without regard to matters that may be decisive.

If the latter course is followed it may give rise to  substantial injustice to the respondent who, through no fault on his part, will not have been afforded the opportunity to be heard on matters that may be decisive.

In the usual course, the role of the court in civil litigation is to decide the issues raised by the parties in their pleadings unless they have deliberately chosen some different basis for the determination of their respective rights and liabilities. That latter event occurs where the parties have, explicitly or implicitly, contested the case on issues other or wider than those pleaded: see Banque Commerciale SA En Liquidation v. Akhil Holdings Ltd. (1990) 169 CLR 279, 286-7 per Mason CJ and Gaudron J, 288 per Brennan J, 296-7 per Dawson J. That has not occurred in the present case.

However, it was also said in Banque Commerciale -

"Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial Judge to see that the
pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted...". (297 per Dawson J).

Although Dawson J dissented, in part, in that case, the statement of principle was unexceptionable. But it does not solve the problem before me. That problem is whether, in the light of my present view that there may have been a failure on the part of counsel for the applicant to conduct the case on the basis of the issues raised by the evidence adduced before the Court, it is incumbent upon the Court to "see that the pleadings or particulars are amended" to reflect those issues. I say "may" as the failure to pursue those issues may have been for good reason which has not been apparent to me.

It is important to note that the role of pleadings is to state the case that must be met and thereby ensure -

"the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision". Banque Commerciale  286 per Mason CJ and Gaudron J.

See also 293 per Brennan J and 296-7 per Dawson J.

Although, "incidentally", pleadings define the issues for decision, it is important that that incidental purpose does not become a vehicle which prevents the administration of justice from being achieved in a particular case.

Accordingly, subject to ensuring procedural fairness, the Court has a role in ensuring that a case is decided on the
evidence rather than on the pleadings. That role will vary according to the circumstances of the particular case.

THE ROLE OF THE COURT IN THE PRESENT CASE
In the circumstances of the present case it is my view that it is incumbent upon me, as the trial judge, to seek to ensure that the case is decided on the evidence rather than on the "pleading". In that regard, I have treated the first Application as if it constituted the claimants "pleading".

In order to ensure that outcome I have decided to relist the matter for mention to afford the claimants the opportunity of applying for leave to amend the Applications to directly and adequately, raise the issues which I have set out above.

If that application is made and granted, appropriate directions can then be made for the further hearing of the matter. Those directions would include provision for further evidence (if any) to be adduced by the Minister and the making of any further submissions upon which the parties may wish to rely.

Substantial justice can then be achieved in the present case without procedural unfairness to the respondent.

I am conscious of the fact that my decision may be seen to constitute a more interventionist role on the part of the Court than is appropriate in a civil proceeding. That is particularly so given the opportunity afforded to the applicant's counsel during the hearing to raise, at least some and possibly all, of the issues in question.

The present case is not an ordinary civil case. It involves claims for refugee status under the Act by reference to the 1951 Geneva Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. In that respect the claims, as well as the issues relating to the conclusive certificates issued under s.166B(3)(a), can be seen to be in the area of public rather than private law. Thus, the outcome of the case necessarily involves interests wider than the individual interests of the parties.

Further, as was emphasised by me in Ozmanian v. Minister for Immigration (13 May 1996 unreported at 34-5, 66) claims for asylum relate to fundamental human rights involving allegations of significant threats to life, personal security, liberty and dignity. The denial of such claims can have drastic consequences for an individual. In the present case at least some of the claimants face a risk of imprisonment (in the applicant's case, for a very long term) on their return to Vietnam.

The claimants left Vietnam in 1989. They have been in custody, first in Indonesia and more recently in Australia, for in excess of 6 years. They claim to have fled Indonesia on the basis that they were denied access to a fair, just and lawful system for the determination of their claims for refugee status. Irrespective of the justification for those claims, on which I make no finding, I regard the role of the Court in a case like the present, as one which must ensure a fair, just and lawful determination of the issues arising on the evidence. In my view the orders I propose to make will secure that outcome.

Finally, the present matter involves a class action by a group of persons having little command of the English language and, I assume, even less knowledge and understanding of the Australian legal system. In these circumstances no assumption can be made that a failure to raise an issue is based on instructions. That fact, together with the additional fact that the action is a class action under Part IVA, can give rise to a greater responsibility on the part of the Court in relation to the conduct of the hearing. Under Part IVA, the group members are not strictly parties in the proceeding able to give instructions as such. Yet, group members are bound by the result (s.33ZB).

The orders I propose to make are as follows:

(a)The applicant be granted leave to apply to amend the Application in this matter to raise the grounds set out above.

(b)I reserve the question of directions for the further hearing of the matter.

I certify that this and the preceding 13 pages are a true copy of the Reasons for Decision of the Honourable Justice Merkel

Associate:

Dated:

Heard:6, 7 and 8 May 1996

Place:Melbourne

Judgment:17 May 1996

Appearances:  Mr. P. Rose instructed by O'Sullivan and Ruffilli appeared for the applicant.

Mr. R. Tracey Q.C. with Mr. A. Kavanagh instructed by the Australian Government Solicitor appeared for the respondent.