SZQDG v The Honourable Nick Nicholls, Federal Magistrate

[2012] HCATrans 96

[2012] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S396 of 2011

B e t w e e n -

SZQDG

First Plaintiff

SZQDH BY HER LITIGATION GUARDIAN SZQDG

Second Plaintiff

and

THE HONOURABLE NICK NICHOLLS, FEDERAL MAGISTRATE

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

REFUGEE REVIEW TRIBUNAL

Third Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 APRIL 2012, AT 9.30 AM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please your Honour, I appear for the plaintiffs.  (instructed by Rasan T. Selliah)

MR G.R. KENNETT, SC:   May it please the Court, I appear for the second defendant.  (instructed by Minter Ellison)

HIS HONOUR:   I should note that the first and third defendants have each filed a submitting appearance.  Mr Karp, annexed to your additional submissions is a version of an amended application for an order to show cause.

MR KARP:   Yes, your Honour.

HIS HONOUR:   Do you wish leave to amend accordingly?

MR KARP:   I do, your Honour.  I have a signed copy of that document to hand up to your Honour.

HIS HONOUR:   Do you object to that, Mr Kennett?

MR KENNETT:   No, your Honour.

HIS HONOUR:   Very well.  Treat that as filed in Court.  May I take it that the evidence you rely on consists of two affidavits of Rasan Thamilarasan Selliah.  The first was filed on 2 December 2011 and the second on 13 March?

MR KARP:   That is correct, your Honour, yes.

HIS HONOUR:   There is also an affidavit of service which need not trouble us, I think.

MR KARP:   No, your Honour.

HIS HONOUR:   I will treat exhibits A, B and C to the second of those two affidavits as evidence to be referred to in that way.  I should have asked, Mr Kennett, do you object to any of this material?

MR KENNETT:   No, your Honour.

HIS HONOUR:   Now, I have read all the written submissions filed, so we can proceed with your oral submissions, Mr Karp.

MR KARP:   Thank you, your Honour.  Your Honour, before we start, I was speaking to my friend before your Honour came onto the Bench.  He may have a couple of preliminary issues which he may want to raise about who should be the defendants.

HIS HONOUR:   Mr Kennett, do you have any preliminary issues you want to raise about who should be the defendants?

MR KENNETT:   I put them at the tail end of my submissions, your Honour, and I was really planning to come to them there. 

HIS HONOUR:   But, in a nutshell, what is wrong with – I mean, it is right, is it not, that Mr Nicholls should be a defendant?

MR KENNETT:   Well, there are two aspects to that, your Honour, and I really just raise the points.  I do not want to put any particular position about them, but the first point is that my friend seeks, among other things, an order that the matter go back to a different Magistrate.  It is perhaps hard to see how Mr Nicholls can implement that.  But the other issue is that this Court has taken the position a number of times in relation to tribunals and other administrative decision-makers that the defendant ought to be the tribunal or the office rather than the person.  I have not found similar cases in relation to courts, but it is not clear to me why there should be a similar rule for judicial officers, so that led me really just to wonder whether the Federal Magistrates Court ought to be the party rather than his Honour.  I do not think that affects the substantive issues in the case at all.

HIS HONOUR:   No.  I understand your point.  I think we can proceed without worrying about that for the moment, Mr Karp.

MR KARP:   Thank you, your Honour.  Your Honour, the parties agree that the matter cannot be remitted to the Federal Court and that your Honour should hear and decide the matter.  We disagree on the course that the hearing should take.  Now, the amended application seeks orders that the orders of the Federal Magistrate be quashed and the matter be remitted to the Federal Magistrates Court to be determined according to law.  The rationale for that course of action is that the matter comes to the Court on judicial review in circumstances where, as the Minister submits, the substantive matter did not involve the final determination of the merits of the proceedings in the court below.  That is because the extension of time had to be granted before the application could be actually heard in the court. 

Thus, in my submission, if there is a jurisdictional error in the Federal Magistrate’s application of section 477(2), it is open to your Honour to remit the matter for reconsideration.  That would permit the Federal Magistrate, Mr Nicholls, or another Federal Magistrate, to hear and determine the matter and, if necessary, the matter could go on appeal.  Now, that said, the matter could only be remitted if it is not futile to do so.  It would not be futile to do so if, in my submission, there was a jurisdictional error in the decision on the extension of time and there was sufficient merit in the substantive argument to have it sent back and, if necessary, to be appealed.  May I move to the extension of time issue.

HIS HONOUR:   I follow everything you have said and I think all that is plain in the written submissions, but where is the difference between the parties?  Mr Kennett says it is futile and you say it is not futile.  He also says there was no jurisdictional error and you say there was, but that is all perfectly red blooded and fair.  What is the difference in procedural approach?

MR KARP:   As I understand my friend’s argument, it should be that your Honour would decide the whole matter today, including the substantive issue.  Now, assuming for the sake of argument that there was no jurisdictional error in the Federal Magistrate’s decision on the substantive matter, or in his reasoning on the substantive matter, there is a question about whether your Honour could decide the substantive matter as if on appeal because this is an issue of judicial review based on jurisdictional error.  In my submission, it would be appropriate in those circumstances to send the matter back to be reheard.  Now, if your Honour was of the opinion there was absolutely no merit in the substantive argument, then I would have to concede it would be futile to send it back.

HIS HONOUR:   Yes, very well.  I understand that.  Now, I interrupted you.  You were going ‑ ‑ ‑

MR KARP: Thank you, your Honour. Your Honour, if I can turn to his Honour’s judgment. Now, the Federal Magistrate said, correctly, that the granting of an extension of time stated in the application before him was that the plaintiff sought to avoid the necessity of going to court by first seeking the intervention of the Minister under section 417. That can be seen at paragraph 22, and that is exhibit 2 to Mr Selliah’s affidavit of 2 December.

HIS HONOUR:   Exhibit 2 is the order of Federal Magistrate Nicholls.  Exhibit 1 is the judgment.

MR KARP:   Exhibit 1 is the order and exhibit 2 is the reasons for judgment.

HIS HONOUR:   Mine are the other way round, but it does not matter.

MR KARP:   No.  Thank you, your Honour.  In any event, the judgment at the top of page 8, paragraph 22 reproduces the reasons which were put forward for the extension of time.  Number one was because:

She sought to avoid the necessity of seeking judicial review by making a request pursuant to section 417 –

Now, that is so.  It is explained in the first plaintiff’s affidavit in which he deposed to the facts of the person who was represented to her as a lawyer and who represented herself as a lawyer told her to go to the Minister first.  If I could take your Honour to that affidavit, which is annexed to Mr Selliah’s affidavit of 13 March, and that is exhibit A to that affidavit.  It is short and she says, in essence, at paragraph 2, she was referred to a Mr Sutharshan by Mr Nadarajah.  Mr Nadarajah used the word “lawyer” to describe Mr Sutharshan’s occupation.  He told her that he would be able to go to the RRT and then later to court.  After the case was rejected, paragraph 5, she asked for her options and he said, in paragraph 5, “You have time to go to the Minister” and gave a time period which she thinks was 14 days.  She later called Mr Sutharshan several times.  He told her:

“You should make a request to the Minister for a visa and if that fails, you can go to court”, or words to that effect. 

He also said, “The last option would be the Court.”  Paragraph 9 she says that she found out about the refusal of the request to the Minister shortly after 22 March.  She then telephoned Mr Sutharshan and asked him what she could do next.  He said:

“Now an application has to be made to the Court, but I cannot do it.  I do not have the authority.  You will have to find a barrister or someone.” 

That was her evidence which was not challenged in cross‑examination in the court below.  If I could take your Honour to the evidence in the court below, which is in exhibit B to Mr Selliah’s later affidavit.  After a number of objections – and if I could take your Honour to page 9 of that transcript, my client says in response to a question by Mr Temby that Mr Sutharshan was her first lawyer.  He said he could take the matter to court and “I will come with you to court.”  Further down the page at about line 34, after the rejection of the RRT application, she gave evidence that she said to him, “You will have to apply to the Minister, but I have to study the case.”  He did not give her any time period upon which she could go to court – which she had to go to court.  If I could take your Honour over to page 10, she said in response to another question by Mr Temby:

“You will have to apply to the Minister first and if the Minister refuses then you will have to go to court.” 

She said in response to the next question that she took the advice of a person who was a lawyer and she followed this advice.  In re‑examination I asked her:

And how did this person describe his own profession?

This is at line 35 on page 10.  The answer was, “As a lawyer.”  Now, in the proceedings in the court below, it was submitted that the person who advised my client was probably not a lawyer.  If I can take your Honour to the court book, at page 410, Mr Sutharshan describes his organisation as Pathfinder Migration and Educational Consultants, not as a lawyer.  Also, if I can take your Honour back to the transcript – I am sorry, not the transcript – the affidavit, paragraph 9, page 2 of the affidavit, she deposed to the fact that he told her, “I do not have the authority to go to court”, which would seem to indicate that he is probably not a lawyer. 

The submission to the court below was that the plaintiff was misled and therefore she did not have – the words his Honour used were “she did not have informed consent as to the course of action that she was taking”.  Now, his Honour’s reasoning on the extension of time commences at paragraph 26 on page 8 of the judgment.  His Honour there refers to “the interests of the administration of justice” and in paragraph 27 to G v The Queen 35 SASR 349. I have a copy of that for your Honour. If I can take your Honour to page 351. This is the only judicial explanation of what the term “interests of the administration of justice” that I can find in Australian law, and that is:

The width of this expression requires no emphasis.  It comprehends every aspect of the administration of justice and is obviously intended to confer on the courts the widest of discretions.  The phrase is apt to encompass, in addition to wider considerations pertaining to the administration of justice, many situations which are more suitably considered under the ground of undue prejudice or undue hardship.

Now, she was a very different case to this. It was a question of, as I understand it, whether a person’s name should be suppressed in a criminal proceeding. That can be found at page 350, section 69 of what appears to be the Evidence Act (SA). On page 9 of his Honour’s judgment in the court below his Honour summarises essentially the evidence that was given by my client in her affidavit and in the court and in paragraph 33 says, “A number of matters immediately arise.” His Honour at paragraph 34 concludes that the plaintiff can be:

taken to have known of the option of coming to Court at least as at the time of the notification of the Tribunal’s decision being conveyed to her –

which I do not cavil with.  Then his Honour says that she was told that she should go to the Minister first, which again is quite plain.  Then his Honour sees a contradiction in the statements given to her and says at paragraph 38:

In the absence of any alternative direct evidentiary explanation by the applicant, the first ground relied on by the applicant in her application for an extension of time remains as the only explanation.

That is that she sought to go to the Minister first and that:

She knew of the options available . . . but “sought to avoid the necessity of seeking judicial review by making a request pursuant to s 417 –

She did this on the advice of somebody who represented herself as a lawyer.  Now, his Honour then referred to my submissions that Mr Sutharshan was not a lawyer and says at paragraph 43:

It was not entirely clear what the applicant hoped to achieve with this submission.

At paragraph 44 his Honour says:

At best, if this was some attempt to say that the course of action she adopted was not as a result of legally informed consent, then this ultimately does not assist the applicant.

My rhetorical question at this point is why? But to move on, his Honour then goes to a large number of authorities in the Federal Court and a couple in this Court and comes to the conclusion, at 64 on page 15, again that the argument that her choice was not a matter of informed consent does not help her. Your Honour, in my submission, the Federal Magistrate’s finding that the question of legally informed consent not assisting the applicant is incorrect. In my submission, the administration of justice is a term probably incapable of exact definition, but what I do wish to establish or try to establish is conceptual framework within which the issue is raised in section 477(2)(b) may be considered.

Now, the discretion afforded by that provision is wide but not unlimited.  Its boundaries are governed by the words read in their context.  The context is the subject of the subsection, that is, to permit access to a court to allow an application to be made.  In my submission, the administration of justice must, I submit, encompass the court process and the way that the process is conducted and central to the conduct of the process is the access of applicants or litigants to the court for litigants are indispensable to the process.  Without them the courts serve no purpose.  If litigants are integral to the court process, then their ability to gain access to the process must be central to the administration of justice. 

That ability depends on both the law that governs access to the courts, but also the individual circumstances so far as they are relevant to such access.  In my submission, it would therefore follow that the interests of the administration of justice include consideration of an individual’s characteristics and any matters which affect the individual’s access to the court processes.  In my submission, if a person takes one choice rather than the other as a choice of a consent which is misleading and not properly informed, then that is a consideration which must go to the interests of the administration of justice.  It is, in my submission, a relevant consideration in the Peko-Wallsend sense.

Your Honour, there is one case in the Full Court of this Court where going to the Minister rather than the courts in the first instance has been considered, and that is Miah.  If I can hand your Honour a copy.

HIS HONOUR:   Yes, certainly.

MR KARP:   Your Honour, as you no doubt know, Miah was a case where a delegate of the Minister was found to have breached the rules of natural justice.  Now, prior to going to the High Court, Mr Miah sought the intervention of the Minister.  If I could take your Honour to the judgment of Justice Gaudron at page 88 at paragraph 107, her Honour said at that point:

It was put that relief should not issue in this case because of the delay involved in bringing proceedings in this Court.  The delay has been explained.  In brief, the delay occurred only because Mr Miah sought to have his claims properly considered without the need to institute the present proceedings.

That is, to go to the Minister first –

The Minister declined to exercise powers which may have rendered the proceedings unnecessary.  That being so, the argument that relief should be refused on discretionary grounds is wholly without merit.

Justice Kirby, at page 103 at paragraph 152 said:

The delay of the prosecutor was not “unwarrantable”. It has been explained as resulting from a combination of the dilatoriness of the lawyers and the delay by the Minister in determining whether or not to dispense with the requirement of s 48A of the Act. There is no “more convenient and satisfactory remedy” — the deadline for the Tribunal’s review has expired, the Minister has twice refused to exercise a power to reconsider the visa application, and damages do not seem to be available to the prosecutor.

In any event, they are far from an appropriate remedy.  So, your Honour, in those two judgments there was a consideration of whether an application to the Minister by itself ‑ ‑ ‑

HIS HONOUR:   That was actually Justice McHugh.

MR KARP:   I am sorry, your Honour.

HIS HONOUR:   Justice Kirby’s judgment begins straight afterwards.  The page headings often mislead.

MR KARP:   I am sorry, your Honour.  I thank you for correcting me.

HIS HONOUR:   It is hard to imagine Justice Kirby would have been of any different view.

MR KARP:   Justice Kirby – and, in fact, I have just found the reference – was of the same view, at page 129, paragraphs 218 and 219.

HIS HONOUR:   Page 125 actually.

MR KARP:   I am sorry, 125.  I stand corrected, your Honour.  So therefore, your Honour, in my submission, the personal circumstances of the applicant and whether they have taken a choice as a result of informed consent are legally relevant to the question of an extension of time.  They are legally relevant because that comes within the parameters of the term “interests of the administration of justice”.  That, of course, is to be weighed along with a number of other considerations, including, of course, the length of the delay, conduct of the applicant, prejudice to other parties, public interest in putting an end to litigation, the public interest in keeping administrators within the bounds of the law and, of course, the strength or otherwise of the substantive case, but, in my submission, it is a relevant consideration and his Honour was in error in not finding it so.  Your Honour, unless I can assist further in that aspect of the case, I am prepared to address the substantive issue, if that would be suitable?

HIS HONOUR:   Yes.  Let us turn to the substantive issue.

MR KARP:   Now, your Honour, the facts found by the Tribunal were that the – has your Honour read the decision of the Tribunal?

HIS HONOUR:   To be perfectly frank, I read the first four pages of it and about the last 10 pages of it, in other words, the substantive reasoning.  Is there anything else you want to rely on?

MR KARP:   Yes, I think that will be sufficient, your Honour.  Your Honour will know from that that ‑ ‑ ‑

HIS HONOUR:   To be precise, I have read closely from paragraphs 97 to the end.  It begins on page 106 of exhibit C.  That, of course, is what the Magistrate based his adverse conclusion on.

MR KARP:   Yes.  Thank you, your Honour.  Obviously your Honour will have read the Tribunal rejected the claims for persecution put personally by the applicant before him and what was left was the claims based on ethnicity per se.  Now, what I focus on – and I am using a different part of the decision, your Honour, so would it be convenient if I simply referred to the paragraph numbers of the ‑ ‑ ‑

HIS HONOUR:   You focus on paragraph 115, particularly the words:

I accept that cordon and search operations continue to take place in Colombo but . . . in general it is young male Tamils originating from the North or the East who are most at risk of being detained in the cordon and search operations in Colombo.

You say it does not really matter whether one is most at risk, the question is whether one is exposed to a real risk.

MR KARP:   That is correct.

HIS HONOUR:   Could be exposed to a real risk even though one was not in the most risky of positions.

MR KARP:   Yes.  To use an example, in World War II Nazi invasion of Poland, Poles were at risk because they were considered to be less important than Germans and Jews were more at risk.  The fact that Jews were more at risk did not mean that Poles were not themselves at risk, to use a fairly stark example.  Your Honour, I rely on Ponnudurai, which I might ‑ ‑ ‑

HIS HONOUR:   I think I have that.

MR KARP:   Thank you, your Honour.

HIS HONOUR:   Tab 8 in the second defendant’s authorities.

MR KARP:   Thank you.  In particular paragraph 12.

HIS HONOUR:   Yes, I have read that, and that more than once.

MR KARP:   Your Honour, apart from paragraph 115, I also referred his Honour to paragraphs 103 and 107 which are, in a way, a build-up to paragraph 115.  Now, the Tribunal refers at 103 to a document entitled Sri Lanka:  A Bitter Peace and to the proposition that the government are still concerned about a potential threat by the Tamil Tigers.  Now, it might be worthwhile me taking you to that document briefly.  It starts at 262 and is essentially a litany of problems that many people in Sri Lanka have, including, at 263, detention of up to 280,000 civilians.  That is under the heading “Displacement and Resettlement”.  On to 264 it deals with physical attacks and death threats against journalists.  On to the second column, abductions, forced disappearances and illegal detentions where it says:

Disappearances and abductions – whether for ransom or to target those suspected of working with the LTTE – are much less frequent than in 2006-2008, though there have been reports of such cases since the war’s end, primarily from the Northern and Eastern Provinces.  To date, no one has been prosecuted [for these].

There was also other information about persecution of Tamils in Colombo and if I could take your Honour briefly to 237 ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.

MR KARP:   A newspaper or looks like an internet article saying that:

Tamils arrived from UK were taken into custody and held incommunicado detention for nearly two weeks to find out their connections with the LTTE –

The paragraph above indicates that:

Tamils visiting from the European countries, Canada and USA are subject to humiliating investigations by the authorities. 

Part of another RRT decision at 251 to 252, at paragraph 50, the then Tribunal member quotes a Human Rights Watch Report to the effect that:

Virtually anyone who had any contact with the LTTE, whether Sri Lankan or foreign, is now a suspected LTTE sympathiser.  Sri Lanka appears headed for a McCarthyite period. 

Under paragraph 52, the UK Home Office Operational Guidance Note refers to:

According to UNHCR, acts of abduction and kidnapping continue to be a serious problem in Sri Lanka, particularly in the North and East of the country and in Colombo.

There was other information, such as at page 312, to the effect that Tamil youths have been arrested in Colombo.  So there was information to the effect that all was not wonderful in Colombo or in Sri Lanka if you were Tamil.  In my submission, to reach a conclusion on the basis of comparing the risk of one group to the risk of another is to misconstrue the question of a well-founded fear of persecution in Article 102 of the Convention. 

Now, if I can turn then to the Federal Magistrate’s judgment, page 17, his Honour at paragraph 74 reproduces the relevant paragraphs of the Tribunal decision and states correctly at paragraph  75 what I said the error was.  At paragraph 76 he then extracts paragraph 12 of Ponnudurai and at paragraph 79 his Honour said:

The Court found [in Ponnudurai] that the Tribunal did not address the question of whether the applicant’s “...fear of persecution was well founded in a risk sufficiently tangible to enable it to be said that there was a real chance of persecution...”.

That is correct.  Then his Honour said –

But it addressed a different question, namely whether the applicant would or would not be arrested on return.

That, in my submission, is a misinterpretation of what Justice Burchett said in Ponnudurai.  What his Honour found that the Tribunal did address was whether the applicant in that case would be at a greater risk than others or would be particularly at risk.  Now, having misconstrued Ponnudurai, his Honour then looked at the case before him and said, correctly, over a number of pages that the Tribunal had rejected the personal claims.  At paragraph 113, his Honour said in summary:

I do not see this as being, or involving, some application of the wrong test.  The Tribunal was plainly not saying that the delegate’s decision should be affirmed simply on the basis that the applicant was at less risk than young Tamil males, who were most at risk.

In my submission, that is exactly what the Tribunal was saying.  The Tribunal was, in fact, saying two things; one, she had not been persecuted before and, secondly, she would not be persecuted in the future because she was of less risk than people who were most at risk.  Your Honour, in a nutshell, that is what I say were the mistakes that his Honour made and I would submit that if your Honour were to be of the opinion that this is arguable in the court below and that there was a jurisdictional error in his Honour’s consideration of the extension of time issue, then the matter should be sent back to either Federal Magistrate Nicholls or another Federal Magistrate.  Unless I can further assist, those are my submissions.

HIS HONOUR:   Thank you very much, Mr Karp.  I need not trouble you, Mr Kennett.

The first plaintiff is the mother of the second plaintiff.  The second plaintiff is a child.  The second defendant is the Minister for Immigration and Citizenship.  On 2 December 2011, the plaintiffs filed an application for an order to show cause why a writ of certiorari should not issue from this Court to quash a judgment of the first defendant, Federal Magistrate Nicholls.  This morning, by consent, leave was granted to amend that application.

The background of the proceedings is as follows.  The plaintiffs come from Sri Lanka and are of Tamil ethnicity.  The first plaintiff comes from the north east of Sri Lanka which was described in argument as the stronghold of the Liberation Tigers of Tamil Eelam (“LTTE”).  The first plaintiff claims to have witnessed in the 1980s attacks on civilians by the Sri Lankan Army in the course of its struggle with LTTE.  Though the first plaintiff moved to Colombo in 1990, claims that her husband was there arrested, detained and beaten on several occasions on suspicion of being associated with the LTTE in 2000, she and her family moved to Brunei.

On 14 October 2009, the plaintiffs arrived in Australia and applied for protection visas.  On 4 February 2010, a delegate of the second respondent refused the plaintiffs’ application.  He was not satisfied that the first plaintiff had a well-founded fear of persecution for a Convention reason.  He took into account the fact that despite opportunities over a long period while outside Sri Lanka, the first plaintiff took no steps to seek protection and also the fact that she visited Sri Lanka on four occasions between 2000 and 2009.  He pointed out that her husband would no longer be able to extend his work position in Brunei.  In general, he regarded what the first plaintiff said as having “little credibility”.

The plaintiffs applied to the Refugee Review Tribunal for review of the delegate’s decision.  On 13 June 2010, the Tribunal dismissed the application for reasons which were, to some extent, similar to but more detailed than those given by the delegate.

The plaintiffs then applied to the Federal Magistrates Court for judicial review on 13 June 2011, nearly 10 months after the date of the Tribunal’s decision. The application should have been made within 35 days; section 477(1) of the Migration Act 1958 (Cth) (“the Act”). The application was therefore eight and a half months late, approximately. The Federal Magistrates Court had power to extend time if “satisfied that it is necessary in the interests of the administration of justice to make the order”; section 477(2)(b) of the Act.

As an explanation for the delay, the plaintiffs relied on evidence suggesting that a person who was introduced to the first plaintiff as a lawyer and who represented himself to be a lawyer advised her to make an application to the second defendant under section 417 of the Act and if that failed, then to apply to the Federal Magistrates Court. Indeed, on one view of the evidence, the conclusion to be drawn is that the first plaintiff was told that that was the only possible course. The application under section 417 failed.

On 7 November 2011, Federal Magistrate Nicholls dismissed the plaintiffs’ application to extend time and dismissed their application for judicial review:  SZQDG & Anor v Minister for Immigration and Citizenship & Anor [2011] FMCA 836. It is these orders which are attacked by the amended application for an order to show cause. It is common ground between the parties that the matter ought not to be remitted to the Federal Magistrates Court, is not capable of being remitted to the Federal Court of Australia and ought not to be referred to a Full Court of this Court.

The plaintiffs in their amended application for an order to show cause advanced two grounds of complaint. The first category of complaint related to the extension of time question. The plaintiffs contended that Federal Magistrate Nicholls erred in failing to take a relevant consideration into account in considering their application for an extension of time. The relevant consideration relied on is whether the plaintiffs’ decision to make a request to the second defendant under section 417 of the Act prior to seeking judicial review of the Tribunal’s decision in the Federal Magistrates Court was the result of “informed consent”. The second category of complaint related to the question whether the substantive ground which the plaintiffs wished to rely on before the Federal Magistrates Court, if time had been extended, lacked merit to such a degree that it was not in the interests of justice to extend time.

The amended application for an order to show cause states only one ground on which relief is claimed, the informed consent point.  However, the submissions themselves contend that if a jurisdictional error based on informed consent is found, the relief sought should be granted unless that error would make no difference.  The submissions contended that the relief should be granted if “the plaintiffs’ substantive ground is sufficiently arguable”.  The plaintiffs’ written submissions in relation to the question of how far their substantive ground was arguable were as follows:

There was considerable material before the Tribunal to the effect that human rights violations continued to be perpetrated against Tamils, despite the defeat of the LTTE and the end of the civil war in Sri Lanka.

This morning in oral argument, Mr L.J. Karp, counsel for the plaintiffs, took me to some of that material.  The written submissions continue:

The Tribunal’s dismissal of the plaintiff’s claims of individual persecution left the claim that the plaintiffs feared persecution solely for reason of their ethnicity.  The Tribunal’s reasoning process in this respect was that the human rights situation in Sri Lanka had improved since the end of the war, there had only been isolated instances of abuses against young women, and those had occurred in the north and east, and most tellingly, that, “... in general it is young male Tamils originating from the North or the East who are most at risk of being detained in the cordon and search operations in Colombo”.  From this the Tribunal reasoned that it did not accept that they had a well founded fear of persecution by reason of their race.

As Burchett J explained in Ponnudurai v Minister for Immigration [2000] FCA 91, whether a fear of persecution is well founded is not to be ascertained by finding that one group of people is more at risk than others, or is most at risk. The issue is whether the plaintiff and her daughter have a well founded fear of persecution, which, as this Court held in Chan v Minister for Immigration (1989) 169 CLR 379, 397, 405, 412, 424-426, requires consideration of both subjective and objective elements. In this case the Tribunal failed to lawfully deal with the objective element.

In oral argument, Mr Karp submitted that to reach a conclusion adverse to the plaintiffs by comparing the risk to one group of the Sri Lankan population to the risk to another group was to misconstrue the relevant test for assessing whether or not there was a well-founded fear of persecution.  Federal Magistrate Nicholls quoted the relevant passage in Ponnudurai’s Case.  He dealt with it by finding that the part of the Tribunal’s reasoning of which the plaintiffs complain was not significant.  In Ponnudurai’s Case the Tribunal had failed to consider whether the applicant had a well‑founded fear of persecution.  Federal Magistrate Nicholls said that that was not true of the Tribunal in this case.

Mr Karp attacked in particular paragraph 113 of the reasons for judgment of Federal Magistrate Nicholls.  In that paragraph he said of the relevant passage in the Tribunal’s reasoning:

I do not see this as being, or involving, some application of the wrong test.  The Tribunal was plainly not saying that the delegate’s function should be affirmed simply on the basis that the applicant was at less risk than young Tamil males, who were most at risk.

This boils down to a question of construction of the Tribunal’s reasoning.  I would arrive at a construction of the reasoning which is similar to that of the Magistrate.  The Tribunal set out the relevant test correctly.  The Tribunal was conscious of various points raised by the plaintiffs:  their position as women of Tamil ethnicity against the background of the civil war; the first plaintiffs having migrated from the north east, the LTTE power base; the first plaintiff’s residence abroad and her vulnerability if she returned to Sri Lanka as someone who had come from abroad; and an incident in March 2006 when the first plaintiff claimed to have been detained and mistreated by the police.

The Tribunal rejected the first plaintiff’s version of the March 2006 incident.  It also rejected her claims that she and her husband had been mistreated in the years 1990 to 2000.  Indeed, there were several respects in which the Tribunal rejected the first plaintiff’s factual claims.  It found that she had erroneously conflated a supposedly recent rape and murder with an incident in 1996.  The first plaintiff attributed her decision to seek a protection visa in Australia to the loss of a presidential election by a particular candidate.  In fact, the Tribunal found the election took place after her decision.  The Tribunal, after rejecting the first plaintiff’s evidence to the contrary as “deliberately evasive”, found that the first plaintiff and her family would live in Colombo if they returned to Sri Lanka. 

The Tribunal pointed out the inconsistency between claiming to fear persecution and failing to seek asylum in the United Kingdom in 2006 and in September 2009.  The Tribunal rejected the first plaintiff’s claim that she did not do so because she believed the political situation in Sri Lanka would improve.  The Tribunal also pointed out the inconsistency between claiming to fear persecution and returning to Sri Lanka four times.  The Tribunal found that nothing in the travel history of the first plaintiff’s family suggested that they had ever been of interest to the Sri Lankan authorities or that the first plaintiff had any well-founded fear of returning to Sri Lanka.  The Tribunal repeatedly referred to the fact that whatever fears a Tamil might have had during the war, the war had ended.  There had been only isolated examples of human rights abuses against young women in Sri Lanka since the end of the war. Those examples did not come from Colombo, but from other places.

The Tribunal thus assembled a long collection of facts adverse to the plaintiffs.  In this application for judicial review, the plaintiffs do not and cannot challenge those facts as jurisdictional errors.  In the middle there appears the words complained of, that is, the words in which the Tribunal stated:

I accept that cordon and search operations continue to take place in Colombo but the information available to me suggests that in general it is young male Tamils originating from the North or the East who are most at risk of being detained in the cordon and search operations in Colombo.

In context, that sentence is not favourable to the arguments advanced by the plaintiffs which are under consideration.  It follows and is succeeded by a substantial account of how, for those living in Colombo, even if they are Tamils who are female, there is no real risk of persecution.  The statement that young male Tamils were most at risk of being detained is not an assertion which leaves open the possibility that female Tamils were at a real risk, albeit a lesser one.  In context, it reiterates the Tribunal’s repeated theme that there was no real risk of persecution for the plaintiffs.  That theme was closely interwoven with the Tribunal’s factual analysis.  The impugned sentence does not suggest that the Tribunal failed to apply the correct test at any stage. 

Accordingly, even if the informed consent argument were successful, and it had some considerable prima facie strength, and even if that were to be regarded as a jurisdictional error, there would be no point in granting the discretionary remedies sought, namely, certiorari and mandamus.  Mr Karp drew attention, at the start of his oral argument, to a possible question of whether the informed consent argument should be decided in isolation.  He submitted that it would be better to consider that argument and if it were accepted, to refer the matter back to the Federal Magistrates Court, but he also accepted that if there were, to quote his words, “absolutely no merit in the substantive argument”, then it would be futile to send it back.  In my opinion, with respect to his submissions, there is absolutely no merit in the argument.

The second defendant also raised an argument as to whether the first defendant had been correctly identified.  He submitted that it was wrong to name Federal Magistrate Nicholls and that the correct first defendant was the Federal Magistrates Court.  In the circumstances, there does not seem to be any point in deciding on the merits of the question which Mr Kennett of Senior Counsel for the second defendant raised.  Do you seek costs, Mr Kennett?

MR KENNETT:   Yes, your Honour.  Your Honour, I am told the second plaintiff is a minor, so we would only seek costs against the first plaintiff.

HIS HONOUR:   Do you oppose a costs order against the first plaintiff?

MR KARP:   No, your Honour.

HIS HONOUR:   The application for orders to show cause is dismissed.  The first plaintiff must pay the second defendant’s costs.  Thank you, gentlemen.  The Court will now adjourn.

AT 10.32 AM THE MATTER WAS CONCLUDED