Sithamparapillai & Anor, Ex parte - Re MIMA

[2004] HCATrans 364

[2004] HCATrans 364

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M29 of 2001

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J. VRACHNAS CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

SANMUGAM SITHAMPARAPILLAI AND MANICKAM SITHAMPARAPILLAI

Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 SEPTEMBER 2004, AT 9.30 AM

(Continued from 29/7/04)

Copyright in the High Court of Australia

MR A.F.L. KROHN:   May it please the Court, I appear for the applicants, your Honour.  (instructed by Ravi James & Associates)

MR. W.S. MOSLEY:   I appear for the first respondent, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The Tribunal is a submitting party, I believe?

MR MOSLEY:   Yes, your Honour.

HIS HONOUR:   Yes, Mr Krohn.

MR KROHN:   If your Honour please.  Your Honour, this is an application for orders nisi.  The first matter is that there is sought leave to amend the ground of the order nisi in the terms set out in the prosecutors’ outline of submissions dated 27 July this year.  It is similar to the situation of the amendments sought in the application for orders absolute yesterday, but this is still an application for order nisi, and so, in my submission, the considerations of Order 55, rule 11 or 17 do not apply, at least not in the same form. 

I understand that the application to amend is opposed on the basis that it is a late application.  The submission is that it is an application which has not caused prejudice, because it is not a changing of course while the matter has been under argument.  It is simply an application to amend that is made now that this question of procedural fairness comes for consideration.  It is submitted that there is no prejudice to the respondent in allowing the amendment. 

I have, if it is of assistance to your Honour – it may not be very much assistance – I have found one reference to a case this morning on the matter of amendment, although perhaps it may bear more upon the situation after an order nisi has been granted considering amendment in the light of Weldon v Neal.  I have had a brief word with – just to identify that I had found a reference – my learned friend, but neither he nor I has had an opportunity to read the case and consider it.

HIS HONOUR:   Yes, what is the reference?

MR KROHN:   The reference, your Honour, is Collins v Hertfordshire County Council [1947] KB 598. It is also [1947] 1 All ER 633. It goes, I believe, to the question of permitting an amendment if there is no prejudice to the defendant that cannot be compensated by costs or an adjournment, if it is an amendment that would introduce facts that are merely further or different particulars of material facts pleaded originally. It would appear to be perhaps a pleading case, your Honour. In my submission, what is sought to be advanced here is, in effect, the same ground, denial of procedural fairness, and the amendment seeks to put forward different particulars of that procedural fairness breach. On that basis, your Honour, it is sought to have leave to amend. Does your Honour desire to hear from my learned friend at this point on the amendment?

HIS HONOUR:   No, I think you should present the whole of the argument that you wish to present, Mr Krohn, including argument that would go to the questions of delay and whether the proposed amended ground would be an arguable ground.

MR KROHN:   Yes, your Honour.  In relation to the delay, your Honour will have seen that there is an affidavit filed by the first applicant on 16 August this year and part of that affidavit addresses the difficulties that the applicants had, specifically, financial difficulties.  Your Honour will see that in paragraph 5 the applicant refers to expropriation of property in Sri Lanka and the inability of the applicant to transfer a pension from Sri Lanka, and that, even had he been able to, it would not be a significant amount, due to exchange rates for Sri Lankan currency.  Then at paragraph 6, the applicant deposes that:

My wife and I therefore, since arrival in Australia, depend entirely on our daughter for accommodation, food and every expense including medicines, which is frequent due to our age.

The applicant has referred to his age in paragraph 5, and he is now 77, your Honour: 

Added to this, we became a financial burden to our daughter as she had to meet the expenses of our application to the Department, review to the Tribunal and thereafter the application for review to the courts.

There is reference to the daughter being newly married and beginning her life.  The daughter, it is said, “was not financially sound to meet all these commitments”.  Then at paragraph 7 the applicant deposes that:

I realised that proceeding with the review before the Federal Court had cost my daughter approximately $5,000.00. 

That amount takes into account concessions extended by the lawyers.  He deposes:

We were advised that if we were to seek a further review to the courts, we would need to spend at least another $6,000.00.  We were also informed that about $10,000.00 has already become payable towards the cost of the Minister and a similar amount may be needed in the event such appeal did not succeed.

The applicant deposes that he was not able to bear such costs and was reluctant to place an additional burden on his daughter.  The applicant deposes:

We thought we should request the Minister to intervene on our behalf as we were told the Minister would not consider the request for intervention if there was any outstanding review in the courts.

HIS HONOUR:   Now, these matters were considered, were they not, in these applicants’ case by Justice Weinberg in his dealing with so much of the proceeding as was remitted to the Federal Court. 

MR KROHN:   Yes, your Honour.

HIS HONOUR:   His Honour concluding, at least as I read it, that the delay was not adequately explained, and that, on that account, the application for extension should be refused.  I have in mind paragraph 12.

MR KROHN:   Yes, your Honour, I have that, your Honour.  His Honour did not have before him the detail that is in this affidavit concerning the monetary amounts and the detail concerning the situation of the daughter, and to that extent, in my submission, there is further explanation before your Honour.  It is also in that way distinct from what was before his Honour Justice Weinberg, so that there is no conflict in that sense if your Honour is to accept that the delay is explained on the basis of the material now before your Honour.

HIS HONOUR:   Yes.

MR KROHN:   I note also, your Honour, at paragraphs 5 and 6 there are the dates on which the Minister decided not to consider the exercise of his discretion under section 417.  That was 28 February 2001.  Then on 29 March 2001, just a month later, the prosecutors filed the present application.  In my submission, your Honour, as far as the circumstances and reasons for the delay are concerned, the applicants have moved within the means available to them to seek relief against the Tribunal’s decision. 

I note the cases, as I noted yesterday in the other matters, your Honour, which are referred to by my learned friend in his submissions concerning an application to the Minister not being an adequate explanation for delay in seeking recourse to the courts.  I make simply the submission that in a case where both Parliament has provided for the 417 avenue as well as for recourse to the courts, but also in this case, where there is evidence that the Minister would not consider a request under section 417 while there was any pending litigation, particularly with that circumstance also, in my submission, there is a basis on which to say that by seeking relief under section 417 the applicants should not be regarded as simply delaying or doing nothing ‑ ‑ ‑

HIS HONOUR:   But do they, by seeking relief under 417, implicitly accept that the Tribunal’s decision is not open to challenge?

MR KROHN:   In my submission, no, your Honour, and that follows from the proviso in section 417 itself that the discretion of the Minister to substitute a more favourable decision is a discretion which applies whether or not the Tribunal had the power to make that other decision.  The breadth of the discretion is great, but it certainly includes the power of the Minister to overturn the decision of the Tribunal on the basis that the Minister considers that the Tribunal’s decision was wrong.  It also allows the Minister to grant visas of other classes that the Minister might consider would more appropriately for any reason be granted. 

On that basis, your Honour, it is, in my submission, open to the applicants to submit before the Court that, particularly in a case such as the present, where the applicants say, “Look, you did not tell us what you thought was a serious thing that went against us; if you had told us, then this is what we would have said about it”, and therefore the reason that the applicants disagree with the decision of the Tribunal is – or one of the reasons is at least – that they say the Tribunal got it wrong.

HIS HONOUR:   Yes.

MR KROHN:   On that basis, the power conferred on the Minister is invoked by applicants who are going to the Minister at least in part because they say the Tribunal got it wrong.  The Tribunal has no power to revisit the facts.  The court has no power to revisit the facts ‑ ‑ ‑

HIS HONOUR:   Sorry, the Tribunal has no power to revisit the facts?

MR KROHN:   No, I am sorry.  I beg your Honour’s pardon.  Once it has made the decision.  If the Tribunal decided that it had fallen into jurisdictional error it is now clear, I think from Bhardwaj, that the Tribunal could simply vacate the decision and say to everybody, “Well, it was not a valid decision”.  But if the Tribunal simply decided after making the decision that it had made a mistake about the facts, there is nothing the Tribunal can do about that. 

With all of those circumstances in mind, your Honour, it is submitted that a request to the Minister seeking exercise of discretion under section 417 is not, at least automatically and in all circumstances, to be taken as a tacit concession either that the decision of the Tribunal was correct or that the decision of the Tribunal is to be left undisturbed.  In some cases it could be, your Honour, where the Minister decides to exercise discretion on the basis of what are generally called humanitarian considerations; it might be said that, in effect, the discretion has operated preserving the decision of the Tribunal, but conferring visa for another reason.  But the discretion can also operate, in effect, correcting a decision of the Tribunal. 

So, in my submission, a request to the Minister under section 417 ought not to be taken as an implicit acceptance or resignation to or endorsement of the Tribunal’s decision.  That submission is, in the present case, strengthened by the applicants being told that the Minister would not consider the request for intervention if there was any outstanding review in the courts. 

Those are the submissions in relation to section 417 and the delay, your Honour.  The proposition can be illustrated by considering the alternate, which is that the applicants did nothing and then came to the Court on the same date as in fact they did.  In my submission, that is a clearly different situation from applicants who have taken an avenue provided by Parliament, in effect, to seek relief against the Tribunal’s decision, even if that is not by way of a challenge which would result in a formal order setting aside the Tribunal’s decision. 

Perhaps finally on that point, your Honour, the relief that the Court would give would be, amongst other things, certiorari to quash the decision.  The relief the Minister could give would be an administrative decision to grant a protection visa.  The decision of the Tribunal is an administrative decision affirming a decision to refuse a protection visa, and on that basis, your Honour, a request to the Minister under section 417 should be seen as a challenge to the Tribunal’s decision when this Court considers the conduct of the applicants in relation to the question of delay.  Those are the submissions in relation to delay, your Honour. 

HIS HONOUR:   Yes.

MR KROHN:   In relation to the proposition that the applicants have an arguable case, the applicants have filed a transcript of the Tribunal decision.  It is exhibit SS3 to the affidavit of August this year.  Does your Honour have that document?

HIS HONOUR:   Yes, I have that.

MR KROHN:   If your Honour turns to page 15 of that transcript – this is on the question of the warnings that the applicant claimed he was given by the LTTE.  At line 23, 24, the Tribunal:

MR VRACHNAS:    When did they tell you not to go near the armed forces of PLOTE? 

That is another militia group.  Then the interpreter – the interpreter is here interpreting the first applicant’s evidence: 

INTERPRETER:      First time they call me is in December 24 – I am trying to think of the year. 

It appears that the applicant in English must have said 96. 

MR VRACHNAS:    96, after you went back from Australia?
INTERPRETER:      Yes.

Then over the page, your Honour, line 17 for the context:

INTERPRETER:      After I was warned by the LTTE –

Sorry, perhaps to put it in context, your Honour, the reference not to go near the armed forces of PLOTE seems to have been directed at least in part towards the applicant doing interpreting work when he was summoned by the armed forces.  Page 16, line 16, in answer to the question:

MR VRACHNAS:    What did the LTTE do?
INTERPRETER:      After I was warned by the LTTE, I wanted to get myself off this, so I said “I wanted to be relieved from these duties”.  But they said, “No, you’ll have to go and talk to the army personnel and get them to get this waived, not to be involved in helping them.”  I went to the Red Cross office, spoke to the officer there, saying, “Look, I seem to be fraught with danger because of this, and I need help.”  In spite of all this, the army is still summoning me.

MR VRACHNAS:    What did the LTTE do to you?
INTERPRETER:      LTTE called me again and gave me a final warning.  They said they’d post a death sentence on him –

That would appear to be, your Honour, the interpreter slipping into the third person –

They said, “If you return back to them, you’ll lose your life.”

MR VRACHNAS:    Did you go back again? 
INTERPRETER:      Yes, I was called in April. 

Then there is a question at line 35:

MR VRACHNAS:    Did LTTE make a second threat? 
INTERPRETER:      I’m confused by the last phrase of that sentence.  On 11 April, at one of my relatives shop, somebody was shot. 

Then the hearing seems to go onto that issue.

HIS HONOUR:   It comes to its head, does it not, at pages 31 and 32.  Who is giving evidence at 31?

MR KROHN:   That is a Mr Tamaraji, your Honour, and that is the son‑in‑law.

HIS HONOUR:   And at line 17 on 31, or perhaps more accurately 22 on 31, you get the Tribunal putting to the son‑in‑law that he, the son‑in‑law, had given evidence that the applicant had had no warnings at Christmas.

MR KROHN:   That proposition was put to that witness, your Honour, but, in my submission, nothing was put which indicated the consequences that the Tribunal might draw from that.  If I may take your Honour to ‑ ‑ ‑

HIS HONOUR:   What more does the Tribunal do?

MR KROHN:   Perhaps if I may take your Honour – there are three very brief passages earlier than that in the transcript which put it in context, your Honour.  The evidence of the second applicant, the wife, at page 22 of the transcript, line 31:

MR VRACHNAS:    When were you threatened?
INTERPRETER:      18 January they called him and threatened him ‑ warned him.

MR VRACHNAS:    Which year is that?
INTERPRETER:      97. 

MR VRACHNAS:    18 January.  Why do you remember that date?
INTERPRETER:      Because he told me that he was to go and I remember that date.

MR VRACHNAS:    And before that was he ever threatened?

And the answer here is important, your Honour, in putting this in context:  

INTERPRETER:      Yes, he has been, but often he doesn’t tell me because he knew I would be terrified.

Over the page:

MR VRACHNAS:    What about after 18 January – was he ever threatened again?
INTERPRETER:      They would send messages and warn him.

Then, in the evidence of Mr Tamaraji, page 29:

MR VRACHNAS:    What period were you there?
MR TAMARAJI:     December, Christmas, after Christmas. 
INTERPRETER:      After Christmas, till January first week.

Sorry, this is line 25, 26, your Honour.  Then over the page, line 1 on page 30:

MR VRACHNAS:    While you were there at Christmas, you’re not aware that he was threatened? 
INTERPRETER:      No, not at that time, there was no warning given, but I know that he was involved.

At line 35 – this is in the context of the question at line 29:

MR VRACHNAS:    Can you give me some idea of how often he might be taken away for interpreting?
INTERPRETER:      I don’t know, because it was happening there, but I know it seems to have happened several times.

Then the Tribunal says:

MR VRACHNAS:    But you did tell me you were aware he was doing that before he came to Australia in 1996, and when you went there at Christmas you must have talked about it some more.

The Tribunal refers to phone calls.  The answer:

INTERPRETER:      Okay, we only speak once a month.  He might have gone 10, 15 times or more, because every time he goes we don’t know about it, because we only talk once a month on the phone.

Your Honour, those are the relevant exchanges ‑ ‑ ‑

HIS HONOUR:   Well, is the position this?  The applicant says he was threatened on Christmas Eve. 

MR KROHN:   Yes, your Honour.

HIS HONOUR:   The son‑in‑law says, “He has not mentioned to me the threat on Christmas Eve”.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   The Tribunal says, “I do not believe the threat happened on Christmas Eve.  It was invented”.  Now, what is the procedural fairness requirement that has been breached?  You have a question of fact.  It is resolved one way.  The applicant says it is resolved incorrectly.  I understand that, but what is the procedural fairness problem?

MR KROHN:   It is the point in paragraph 13 of the affidavit of August, your Honour – the affidavit of the first applicant.  Paragraph 13:

Although there was discussion between my advisor and the Tribunal about the imputations made by LTTE, their activities against those whom they suspected to be assisting the Sri Lankan forces and the nature of the threats, the Tribunal did not ask me, my wife or son‑in‑law to explain any inconsistencies in the threats that were made or why we did not mention about this to my daughter and son‑in‑law while they were there on holidays.  I believe that had it been asked, all of us would have explained about the general warnings the LTTE made to anybody who assisted the Sri Lankan army, the ways in which such warnings were made, people being requested to attend their territory for questioning and how we did not want to spoil the holiday of my daughter and son‑in‑law by raising alarm bells to them with details of the warnings from LTTE on 24 December 1996.

And then:

The Tribunal did not ask any further questions from any one of us about such discrepancies it saw but then proceeded to conclude that such dates of warning were fabricated by me.

Again, your Honour, referring to what was said in ACT Commissioner v Alphaone, in my submission, here was not something which was an obvious adverse matter, and the reason that it is not an obvious adverse matter was particularly because of the evidence that was given, and not followed up by the Tribunal, by the applicant wife: 

MR VRACHNAS:    And before that was he ever threatened?

INTERPRETER:      Yes, he has been, but often he doesn’t tell me because he knew I would be terrified.

In the context of a hearing where that evidence had been given, your Honour, then for the Tribunal to draw an adverse conclusion about the fact that the applicant referred to a Christmas Eve threat and the wife to a threat on 17 or 18 January – in those circumstances, in my submission, procedural fairness did require the question of the potential adverse conclusion about credit being put by the Tribunal. 

Your Honour, I accept that frequently it may be the case, especially in adversarial court proceedings, where a court may draw conclusions from evidence that has been presented which it considers is inconsistent.  In the case of the Tribunal conducting an inquiry, in my submission, in this circumstance, where there are perceived inconsistencies between the evidence of different witnesses and those inconsistencies assume an importance in the mind of the Tribunal which the applicants could not have anticipated because of that evidence given on page 22 by the wife – in those circumstances, it is at least arguable that there has been a denial of procedural fairness.  What the Tribunal did with that is found in particular on page 10 of the decision, which was exhibit SR1.

HIS HONOUR:   Sorry, page?

MR KROHN:   Page 10 of the decision, your Honour.

HIS HONOUR:   Yes.

MR KROHN:   In fact, perhaps if your Honour begins the paragraph at the bottom of page 9 – two lines from the bottom of page 9 – “In regard to that threat”.  That is the threat that the applicant claims was made in December of 1996.  The Tribunal then says: 

On the basis of hearing him give that evidence –

which includes the evidence that: 

he did not do anything to help the security forces again until he was taken to assist in investigations after the April 1997 death of an army official –

the Tribunal, in my submission, rather puzzlingly says: 

On the basis of hearing him give that evidence, the Tribunal finds that he was indicating that he had not been threatened in the meantime because he had complied with the demands of 24 December 1996.  On the other hand, his spouse said she specifically remembered there was a warning on 18 January 1997. 

There is reference to the son‑in‑law not being aware of that threat.  It refers to the son‑in‑law, saying: 

he was unaware of [the warning]. 

It is not clear whether the Tribunal is referring specifically to a warning on Christmas Eve or on 18 January.  Then the Tribunal’s conclusion, six lines from the bottom of the paragraph:

The Tribunal finds it implausible that the Applicant would not communicate to his close relatives a serious threat against him that could also have involved harm to those relatives.  It also finds it most unlikely that he would remain in Vavuniya under threat for several months when he already had a visa to come to Australia, a valid passport and a supportive family in Australia.

HIS HONOUR:   Would you have any available complaint of the kind you make if the Tribunal had commenced the taking of evidence from the applicant by saying, “I may not believe the evidence you are about to give.  You should bring forward all of the evidence that will support your version of events and explain any discrepancy in the versions of events that I am to hear”?

MR KROHN:   Yes, in my submission, it would still be possible to complain, your Honour, for this reason, that as a preface – perhaps I will qualify that, your Honour.  As a preface to a hearing conducted over a considerable period of time through an interpreter, the question of what might be a discrepancy would be difficult for applicants to determine.

HIS HONOUR:   This applicant was represented, was he?

MR KROHN:   Yes, your Honour.

HIS HONOUR:   These applicants were?

MR KROHN:   Yes, that is so, your Honour.

HIS HONOUR:   By a solicitor and migration agent?

MR KROHN:   Yes, your Honour, different from my instructor, but they were so represented.

HIS HONOUR:   I understand that, yes.

MR KROHN:   I am sorry, I beg your Honour’s pardon.  It was my instructor.

HIS HONOUR:   Yes. 

MR KROHN:   But even considering that and the general form of warning which your Honour has proposed, the ‑ ‑ ‑

HIS HONOUR:   Well, it is not a proposal.  Our next step would be to say, is that not self‑evidently the case?  Do you not begin on the assumption that the evidence that is to be given may not be accepted?  You have this one chance to bring forward all your supporting material and explain internal inconsistencies.  It is a human story.  There are inevitably going to be inconsistencies in it.

MR KROHN:   Yes, your Honour.  Precisely for that reason, in my submission, procedural fairness requires the Tribunal to direct attention to those at least which are not self‑evident.  In my submission, the evidence of the wife that was given at page 20 was evidence which meant that evidence about threats on different dates were not self‑evidently inconsistencies. 

HIS HONOUR:   Yes.

MR KROHN:   If your Honour would pardon me for a moment.  I am sorry, your Honour, I am asking my instructor to check one reference in the transcript.  In the meantime, your Honour, it is submitted that although the Tribunal at the bottom of page 10 makes reference to the possibility of being threatened by the LTTE for assisting the Sri Lankan armed forces ‑ that is about six lines from the bottom on page 10 of the Tribunal decision – the focus of the Tribunal’s concern there is, at least in part, on the period before these claimed threats were made.  The Tribunal refers to return to Vavuniya “after he visited Australia in mid‑1996”, but that is before the claimed threats of Christmas Eve 1996 and January 1997. 

Further, your Honour, it is submitted that had the Tribunal found that in fact the applicant was threatened, and possibly was threatened on a number of occasions, then even though the applicant had not to that date been harmed, it cannot be said that the decision of the Tribunal would necessarily have been the same.  The Tribunal may well have considered that if there really was a threat that had been made by the LTTE to the applicant – or several threats – the assessment of the risk of persecution by the Tribunal may have been different. 

For completeness, I should indicate, your Honour, that at the bottom of that paragraph, the first paragraph on page 10 of the Tribunal decision, the Tribunal adverts also, after dealing with the communication to close relatives: 

[of] a serious threat against him that could also have involved harm to those relatives –

the Tribunal says: 

It also finds it most unlikely that he would remain in Vavuniya under threat for several months when he already had a visa to come to Australia, a valid passport and a supportive family in Australia. 

There are two points about that, your Honour.  There was evidence adverted to by the applicants’ adviser and agent at the top of page 39 of the transcript, about line 5 or 6, that:

The applicant is familiar with the area, he has provided the map, how it was possible for him to avoid the check post and could come up to Mullawitivu, and then once they come to Mullawitivu, because they had aid and they didn’t face serious checking point until they came to Colombo, or to the airport and take their flight.

But then there was also submission by the applicants’ solicitor and agent at page 38 – perhaps I do not need to take your Honour to that.  It is the direct evidence of the witnesses that is relevant. 

Your Honour, that is how it is said that there is a denial of procedural fairness, given – yes, your Honour, the relevance of passing checkpoints and so on is also referred to by the Tribunal in the decision on page 11, the second paragraph.  It is submitted that in the context of the evidence that was given, the conduct of the hearing by the Tribunal and particularly the evidence by the wife about repeated warnings, the applicants could not be said to have been on notice that here was a difficulty that they had to meet.  In the affidavit of August of this year, it is submitted that it is demonstrated how, had they been given the opportunity, they could have set about meeting it, and on that basis, your Honour, it is submitted that there is an arguable case for the relief. 

I have not addressed your Honour on the other headings of the outline of submissions.  I do make the submissions that are in the outline.  I have not taken your Honour to questions of res judicata or estoppel.  I can

do so if your Honour desires, but it is submitted that the amendments sought to be made, that there ought to be leave to make that amendment.  If that amendment is made, it is submitted there is an arguable case that the Tribunal fell into jurisdictional error.  Denial of procedural fairness is a jurisdictional error, following the judgment of the High Court in Aala.  I can, if your Honour desires, take your Honour to those passages, but I presume not, your Honour.

HIS HONOUR:   I understand that procedural fairness may give rise to jurisdictional error, yes.

MR KROHN:   And your Honour was taken yesterday to page 591 of the report in ACT Commissioner for Revenue v Alphaone.  May it please the Court, those are the submissions.

HIS HONOUR:   Yes, thank you Mr Krohn.  Yes, Mr Mosley.  Would you direct your submissions to two issues:  one, the significance of delay, two, the arguability of the proposed amended ground.

MR MOSLEY:   Thank you, your Honour.  In terms of the second issue, we submit there are a number of bases upon which it can be said that there is no denial of procedural fairness to the applicants.  If one looks at our written submissions, paragraph 25, it is not really the inconsistent evidence in any event that the Tribunal determined in relation to the warning.  What the Tribunal found at page 10 of its decision in the first paragraph, at the end, it said:

The Tribunal finds it implausible that the Applicant would not communicate to his close relatives a serious threat against him that could also have involved harm to those relatives. 

So the Tribunal’s difficulty is the implausibility of the husband not advising family and friends, including the son‑in‑law – and we have been through the transcript in respect of that – about the threat that he claimed was made on 24 December.  It is not so much the inconsistency in the evidence in relation to that, but the implausibility that it would not have been communicated, and, in any event, that is not the only reason the Tribunal gives.  In the next sentence, the Tribunal says: 

It also finds it most unlikely that he would remain in Vavuniya under threat for several months when he already had a visa to come to Australia, a valid passport and a supportive family in Australia. 

That is a reference, your Honour, to the fact that he had a visa and could depart at any time post 24 December 1996 if indeed the threat had been made. 

Secondly, your Honour, as the applicants, in their own submissions at paragraph 13, themselves recognise, the Tribunal discussed with the solicitor/migration agent at the hearing the failure of the applicant husband to mention the threat on 24 December to his wife and son in law.  So much appears in the transcript at page 32, where the point is directly raised with the adviser at about line 15 and following.  At line 10 it starts:

MR VRACHNAS:    Which neither the applicant, nor his wife, has made even – actually, his wife can’t remember the threat on Christmas Eve.  She remembers one in January, but neither of them has said there has been a threat over Christmas.

That is at 10.  Then at 15, Mr Raveendran addresses the Tribunal and says in the last sentence, 22:

His conduct may have been, he was not very happy to upset the family, or whatever it is, and he was trying to extricate himself.

And the Tribunal member says:

He can give his own evidence about that.

The point that Mr Vrachnas makes is – on two occasions further down the page at about line 34 and line 36 – he did not tell anyone about that.  Then the applicant is given further notice in further discussion.  Mr Raveendran, page 38, line 15:

The subsequent one is, as the applicant said, when LTTE also threatened him, he tried his best to extricate himself from the situation by speaking to people –

this is Mr Raveendran –

MR VRACHNAS:    But not his son-in-law?
MR RAVEENDRAN:   Pardon?

MR VRACHNAS:    But not his son‑in‑law or his wife –

which is the point that the Tribunal goes on to make a finding about in relation to the implausibility of a serious threat.  That was the first threat that the applicant claimed had been made on 24 December.  That is when he was first threatened in 1996, and the Tribunal finds it implausible, of course, that he would not have communicated that threat, if it had been made, to his wife or son‑in‑law, who was visiting with the applicants’ daughter in Sri Lanka at the time the threat was made. 

There are other references which I have set out in our submissions, your Honour, in relation to the invitation to the applicant husband, both directly and through the migration agent, to give further evidence on any subject that they wished to.  At paragraph 28 of our submissions, the Tribunal specifically queried with the applicant why the date January 1997 and asked whether any threats were made before this, and my learned friend has taken you to that part of the transcript.  At 29, the Tribunal asked the applicant husband whether there was anything further he wanted the applicant wife to give evidence about. 

So, in my submission, your Honour, it was not a matter where ample and adequate opportunity was not given to the applicants to put the case, and it was open to the Tribunal to find as it did that it was implausible that a serious threat made for the first time on 24 December 1996 would not have been communicated to the wife or the visiting son‑in‑law and daughter. 

There is a further basis, as my learned friend adverted to.  In any event, the Tribunal proceeded on an alternate and distinct basis.  So much appears, again, at page 10 of the Tribunal’s decision, about eight lines from the bottom, “Even if he was threatened by the LTTE for assisting the SLAF”.  So, in my submission, even if there was a failure of the Tribunal to provided the applicants with natural justice, in relation to whether a threat was made, the Tribunal proceeds on an alternate basis, saying: 

Even if he was threatened by the LTTE for assisting the SLAF, none of the threats was ever implemented and the Applicant had adequate protection from government security forces –

My learned friend then referred your Honour to this sentence:

The fact that he returned to Vavuniya after he visited Australia in mid‑1996 is consistent with a conclusion that he did not believe he would be harmed in that town. 

My learned friend indicates, well, that was prior to the threat being made, but the Tribunal, to be fair, goes on and says:

Likewise, the fact that he failed to utilise a valid visa to return to Australia when he alleges he was seriously threatened –

that is, again, on 24 December 1996 –

is supportive of the conclusion that he was not threatened or, if he was, he did not fear the threat would be implemented.  On his evidence, he was not harmed by the LTTE although he remained in Vavuniya until May 1997. 

That is some five months after the first threat that he claimed was made.

Fourthly, your Honour, we would submit, as we do in our written submissions, that the Tribunal found – this is at paragraph 33 of our written submissions – in its decision in the passage that I just quoted to your Honour at 10.9 that “adequate protection from government security forces” was available to the applicant in Vavuniya.  That is five lines from the bottom of page 10, and that is repeated on page 11.5 of the Tribunal’s decision, where the Tribunal says:

Even if the LTTE had some interest in harming him, the Applicant has the protection of the SLAF which has placed him in positions of trust on previous occasions. 

Fifthly, your Honour, we would submit that the Tribunal found in addition that the applicant husband had for the most part assisted suspected persons and it was therefore not satisfied that he was threatened by the LTTE whether he could not help suspects.  In other words, the decision was also based on findings unrelated to the claimed natural justice breach.  So, in our submission, your Honour, even if it is arguable that there was a natural justice breach, which we submit that it is not, the decision is supportable on an alternate basis, and, in that event, there is no practical injustice to the applicant. 

Save for what is already in the written submissions, I rely on those.  As far as the delay issue is concerned, as we have set out again in our submissions, the application for the order nisi was made on 29 March 2001.  That was some 16 months post the Tribunal decision.  It was also eight months after Justice Goldberg had dealt with the matter and dismissed the application, there being no appeal from that, and it was not for a further month after the 417 and 48B refusal that the application was made to this Court.

The applicable principles were set out by Justice McHugh in Gallo v Dawson and subsequently in Re Commonwealth; Ex parte Marks.  His Honour there made the point that, independently of the merits of the case, he found it difficult to see how a person, who, with knowledge of the decision, delayed for 17 months before seeking relief, could ever be granted an extension of time.  In this matter of course, more than a year has elapsed before any action was taken.  If the applicants wish to agitate a natural justice point there has been no explanation given as to why they did not institute proceedings in this Court at the same time as they instituted proceedings in the Federal Court, or instituted proceedings in this Court and had that part remitted to the Federal Court at the time that they sought initial review in July 2000 before ‑ ‑ ‑

HIS HONOUR:   I think remitter may have presented some difficulties at that time, may it not?  The logically prior point is one about institution rather than remitter. 

MR MOSLEY:    Yes, your Honour.  My learned friend addressed you about 417 or the applications that are made under 417 or 48B.  I have set out a number of the relevant authorities and there are others with respect to applications made under 417 and relevant authorities.  Does your Honour wish me to take you to the ones that I have referred to – Applicant M29 and A2?

HIS HONOUR:   No.

MR MOSLEY:    As far as the financial circumstances were concerned, in our submission, your Honour, Justice Weinberg determined that although he considered the merits of the matter, that delay in itself would be sufficient to preclude success for the applicants.  I have set out what his Honour said in relation to the application, that the delay had not been adequately explained.  The applicant now says, well, there is a further affidavit, but financial concerns were relied on before Justice Weinberg and so much is referred to by his Honour and is self‑evident from the prosecutor’s affidavit in support of the order nisi, the original affidavit. 

All that subsequently happened, in my submission, is that some meat has been put on the bones, to some extent, in that there is some explanation that they are lacking funds because they cannot transfer a pension, et cetera, but the point is the same, in our submission.  There is a claim of inability to proceed because of financial concerns at an earlier date, but that was dealt with by Justice Weinberg, as was the 417 point.  If your Honour was to determine that the delay should not preclude the applicants from proceeding in relation to this part of the application, it would, in my submission, be somewhat inconsistent with what Justice Weinberg had determined in relation to what was fundamentally the same set of facts, but there is the further material that my learned friend has taken you to, in terms of the affidavit. 

Finally, your Honour, I note in this last of the three matters that have been dealt with by the Court in this matter, again, relief is only sought against the Refugee Review Tribunal.  There is no relief sought against the Minister.  So the prohibition issue is not an issue, unless my learned friend says I am wrong about that.  I think the draft order nisi only seeks relief against the second respondent at paragraph 4(i) of the draft order nisi.  So your Honour need only be concerned with certiorari or the other relief

sought, principally, certiorari and mandamus.  Unless there are any other matters, I think they are the submissions, your Honour. 

HIS HONOUR:   Thank you.  Yes, Mr Krohn.

MR KROHN:   If your Honour pleases.  In relation to the question of the arguability, my learned friend submitted that the issue for the Tribunal was the implausibility of threats not being communicated.  That, your Honour, in my submission, is clear from the Tribunal’s own reasons that it is, in the Tribunal’s mind, inextricably intertwined with the inconsistency.  The Tribunal gets onto the question of plausibility or implausibility because the Tribunal perceives an inconsistency. 

My learned friend’s second point in relation to the transcript – he took your Honour to pages 32 and 38 in exchanges with the applicants’ migration agent and solicitor, but at neither of those points was it made clear that the Tribunal had an issue, in effect, with credit, and that, indeed, while the Tribunal referred to communication or lack of communication by the applicant, it did not refer to the adverse conclusions that it was considering drawing.  When the hearing was resumed with questions directed to the applicant at the bottom of page 32 – and bearing in mind that this is an interview conducted by the Tribunal through an interpreter – there was nothing said there to direct the applicant’s attention to this question.  So, in my submission, the point still stands and still remains arguable. 

My learned friend’s next three points – first, he said that there was an alternate and distinct basis for the decision, and, the Tribunal considered, “Even if threatened”.  I have made submissions in relation to that, your Honour.  In relation to my learned friend’s next point, that the Tribunal found that there was “adequate protection” and then reference to his fifth point that in the context of the work that the applicant was doing as an interpreter perhaps he was assisting detainees, rather than harming them, all of those hang together, in my submission, together with the important claim that the applicant in fact was threatened and that had the Tribunal found that the applicant had been threatened – he may have been threatened on a number of occasions – in my submission, it is not clear from the Tribunal’s reasons that the decision must have been the same. 

If the Tribunal had considered that here is a person who actually has been threatened by the LTTE, then even his relationship with the forces and the question of the adequacy of the protection would have been informed by that finding that here is a man actually threatened by the LTTE.  In that way, in my submission, the finding by the Tribunal which rejected this claim of threat by the LTTE as contrived is a finding which really had the potential to and may well have affected the whole decision, on a reading of the Tribunal’s own reasons. 

In relation to the question of delay, my learned friend submits that here is just a little more meat on the bone put forward, but basically the same as was before his Honour Justice Weinberg.  In fact, at paragraph 10 of his Honour’s judgment, his Honour himself explicitly states:

The applicants also claimed financial hardship but there was little material put forward in support of that claim. 

In my submission, the situation before your Honour is different, and further, in my submission, in making an assessment on the question of delay and the exercise of the discretion of the Court, your Honour should bear in mind the very serious matter of prejudice to the applicants.  That has been set out in the applicants’ written outline of submissions, but it is apposite in reply to my learned friend here on this point. 

I have made also the submissions in anticipation but by way of reply to what my learned friend has said on the section 417 point.  Undoubtedly, the principles in Gallo v Dawson apply, your Honour, but, in my submission, whereas Gallo v Dawson dealt with a case which was hopeless, this case is not, but is arguable, and the relief sought should be granted.  May it please the Court. 

HIS HONOUR:   Thank you, Mr Krohn. 

The applicants are husband and wife.  Each is a citizen of Sri Lanka, of Tamil ethnicity.  They last arrived in Australia on 11 May 1997 and on 27 June 1997 sought protection visas.  Those applications were refused by a delegate of the Minister on 14 August 1997.  The applicants sought review of that refusal by the Refugee Review Tribunal (“the Tribunal”), but the Tribunal affirmed the delegate’s decision on 26 November 1999. 

On 17 December 1999 the applicants made application to the Federal Court of Australia for review of the Tribunal’s decision.  On 5 July 2000 Justice Goldberg of that court dismissed the application:  Sithamparapillai v Minister for Immigration and Multicultural Affairs [2000] FCA 897. No appeal was instituted against that dismissal. On 24 October 2000 the applicants asked the Minister to exercise the powers given under section 48B and section 417 of the Migration Act 1958 (Cth). On 28 February 2001 the Minister informed the applicants that he did not propose to consider exercising the powers under those sections.

In the course of submissions the applicants have characterised this application for exercise of the Minister’s powers as a challenge to the decision of the Tribunal.  The applications for the exercise of powers under sections 48B and 417 of the Act constitute a separate resort to the exercise of executive power.  They are not applications which sought any engagement of judicial power.  It is only, therefore, in a limited sense that it would be right to understand these applications as being applications challenging the decision of the Tribunal.  Rather, it is more accurate to characterise the applications as seeking visas by another path provided by the Act. 

After the Minister had indicated that he would not consider exercising powers under section 48B or 417 of the Act the applicants on 29 March 2001 filed an affidavit in support of applications in this Court for orders nisi for mandamus, certiorari, prohibition and associated relief in relation to the Tribunal’s decision affirming the refusal of protection visas. 

On 26 November 2002 I ordered that part of that application be remitted to the Federal Court of Australia.  That part of the matter which was remitted was dismissed by Justice Weinberg on 6 November 2003:  Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266. His Honour’s reasons for judgment in that matter record that the applicants had also filed in the Federal Court on 16 June 2003 an application pursuant to section 39B of the Judiciary Act 1903 (Cth), seeking constitutional and associated relief, alleging, among other things, that the Tribunal had exceeded its jurisdiction or constructively failed to exercise jurisdiction in that it misconstrued the test of a “real chance” of persecution provided in the Refugees Convention. It was said that the Tribunal had done this inasmuch as its decision was predicated upon the approach and the assessment it adopted as to the credibility of the applicants.

In February 2004 I ordered that so much of the application for orders nisi as remained in this Court as sought to review the exercise of the Minister’s power under sections 48B or 417 of the Act should stand dismissed.  The balance of the application for orders nisi now comes on for hearing. 

The applicants seek to amend the draft order nisi that was filed at the time of filing the original affidavit in support of the application for orders nisi.  That draft order nisi alleged, among other things, that the Tribunal had: 

failed properly to exercise his jurisdiction in that the rules of natural justice or procedural fairness were breached, or alternatively failed to take relevant consideration into account, in that in making the decision, the [Tribunal] failed to make all due and proper inquiries as to the truth of the claims of the Prosecutors/applicants and in particular, failed to utilise mechanisms available within the Tribunal whereby the Prosecutor/applicants’ claims as to the current situation in Sri Lanka and the impact of that situation upon him could have been readily assessed. 

The applicants seek leave to amend that ground by deleting so much as appears after the words “or procedural fairness were breached” and substituting: 

in that the Second Respondent did not give the prosecutors any or any proper opportunity to know and to respond to the significance of evidence given concerning the date or dates of threats made against the First Prosecutor by the LTTE –

I interpolate, the Liberation Tigers of Tamil Eelam –

but the Second Prosecutor subsequently found that the said evidence was a basis for concluding that the said threats had not occurred but were a fabricated claim by the prosecutors. 

The reference to “second prosecutor” is, I suspect, an error; the intended reference being to “the second respondent” or “the Tribunal”. 

In essence, the applicants allege that procedural fairness required that they be advised of potential adverse conclusions about matters of their credit or of the credibility of the evidence they gave to the Tribunal. 

The applicants must confront, as they have, the fact that their applications for mandamus and certiorari were commenced in this Court well outside the times fixed by the Rules of Court.  The course of events which I have described provides no sufficient reason to warrant an extension of those times.  As I have earlier recorded, the applications which the applicants make are not confined to orders nisi for certiorari or mandamus, but extend to applications for prohibition or injunction.  There may be some uncertainty about whether prohibition is sought against the Tribunal and against the Minister or against only the Tribunal.  For present purposes, I am prepared to assume that the application goes so far as to seek prohibition against either or both of the Tribunal and the Minister. 

The Rules of Court provide no time limit for the institution of proceedings seeking prohibition.  For the reasons I have indicated on earlier occasions:  see, for example, Re Minister for Immigration and Multicultural and Indigenous Affairs & Another; Ex parte Applicants M31 of 2004 [2004] HCATrans 318, insofar as the applicants in the present matter seek prohibition or injunction, those applications should be refused. Prohibition will not go to the Tribunal because, so long as its decision stands, there is no further proceeding of that body to prohibit. To the extent to which the applicants seek certiorari to quash the Tribunal’s decision, the appropriate consequential remedy, if certiorari were to go, would not be prohibition; it would be mandamus compelling the Tribunal to conduct the review according to law. Nor should prohibition go to the Minister, for so long as the decision of the Tribunal stands. As Justice McHugh pointed out in Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at 488, paragraph 23, prohibition would not go to the Minister to prohibit her from removing the applicants because, so long as the Tribunal’s decision remains intact, it is the Act which prescribes the consequences that follow in respect of an unlawful non‑citizen. Prohibition would be inapposite for so long as the Tribunal’s decision affirming refusal remained unaffected.

It follows, for these reasons, that the applicants confront directly the difficulty presented by their applications for mandamus and certiorari being commenced out of time.  It is said that the course of events which I have earlier described sufficiently explains the delay that has occurred in instituting proceedings of the kind now under consideration.  It is further submitted that the material now filed on behalf of the applicants reveals not only that they are persons of more than 70 years of age, but also that they have no, or at least no sufficient, financial resources to prosecute proceedings of the kind now in question.  Rather, as the affidavit material reveals, they have been dependent upon the goodwill of their daughter and son‑in‑law to provide the means whereby the various court proceedings that have been instituted have been prosecuted. 

The fact remains that the time limits provided by the Rules of Court have not been met.  The periods fixed by the Rules provide ample time in which to commence proceedings in the Court.  In Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495 to 496, paragraph 16, Justice McHugh said that:

In all but very exceptional cases [the Rules of Court] should be rigidly applied when –

as here –

more than one year has elapsed between the decision and the commencement of proceedings in this Court. 

Resort to the alternative path provided by sections 48B and 417 of the Act entailed, so the applicants contended, that there be no continuing legal proceedings extant.  Nonetheless, the pursuit of that path is, in my opinion, not a sufficient explanation for the failure to institute proceedings making the allegations which now it is sought to pursue.  That of itself would be reason enough to conclude that the proceedings brought should stand dismissed.  In addition, however, it should be said that the contentions foreshadowed by the applicants in their proposed draft amended order nisi are contentions which are not reasonably arguable. 

The course of events before the Tribunal made plain to the applicants that there was a serious question about the veracity of the first applicant’s claim that he had received threats from the LTTE on 24 December 1996.  So much was apparent from the course of evidence and questioning of the applicant’s son‑in‑law, where the Tribunal expressly considered whether the first‑named applicant had mentioned the threat which he said had been conveyed to him on 24 December.  That the Tribunal later reaches a finding of fact rejecting the applicant’s contention reveals no want of procedural fairness.  That the Tribunal did not, in the course of taking evidence from the applicants and their witnesses, foreshadow that a possible outcome of the proceedings was that the version of events given by the applicants would not be accepted reveals no want of procedural fairness. 

No doubt the subject of a decision may in at least some, perhaps many, circumstances be entitled to have his or her mind directed to the critical issues or factors on which a decision is likely to turn in order to have an opportunity of dealing with them.  In this particular case, there is no doubt that whether and when threats were made were issues at the centre of the inquiries being made by the Tribunal.  An adverse finding of fact constitutes no arguable ground of want of procedural fairness. 

The proposed amended ground not being arguable, that provides further and separate reason to conclude that the application should stand dismissed.  The orders are application dismissed with costs.  I will certify for the attendance of counsel. 

MR KROHN:   May it please the Court. 

MR MOSLEY:   If your Honour pleases. 

HIS HONOUR:   I will adjourn. 

AT 11.01 AM THE MATTER WAS CONCLUDED