M162 of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs (No 2) [2004] FCA 23 (29 January 2004)

Last Updated: 29 January 2004

FEDERAL COURT OF AUSTRALIA

M162 of 2002 v Minister for Immigration & Multicultural &

Indigenous Affairs (No 2) [2004] FCA 23

MIGRATION – protection visa – application under s 75(v) of the Constitution for prerogative writs against the Minister for Immigration and Multicultural and Indigenous Affairs and the Refugee Review Tribunal – where application for mandamus and certiorari out of time – whether application had prospect of success – whether prohibition should be principal relief sought.


Migration Act 1958 (Cth)
Constitution of the Commonwealth of Australia 1901 (Cth): s 75(v)
High Court Rules: O 55 r 17, O 55 r 30, O 60 r 6


Applicants M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146, considered
Re Ruddock; Ex parte Reyes (2000) 177 ALR 484, considered
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, followed
Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054, followed
Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1338, followed











APPLICANTS M162 of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS (No 2)

V 305 of 2003


GOLDBERG J
29 JANUARY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 305 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	M162 of 2002 Applicants
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent MR GRAEME BREWER AN OFFICER OF THE COMMONWEALTH IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL Second Respondent MR STEVE KARAS AN OFFICER OF THE COMMONWEALTH IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL Third Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	29 JANUARY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for an extension of time within which to apply for the issue of a writ of certiorari and a writ of mandamus be dismissed.

2. The application otherwise be dismissed.

3. The applicant pay the respondent’s costs of and incidental to the application, including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 305 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	M162 of 2002 Applicants
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent MR GRAEME BREWER AN OFFICER OF THE COMMONWEALTH IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL Second Respondent MR STEVE KARAS AN OFFICER OF THE COMMONWEALTH IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL Third Respondent

JUDGE:	GOLDBERG J
DATE:	29 JANUARY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 The applicants seek the issue of writs of prohibition, certiorari and mandamus and associated relief against the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") and the Refugee Review Tribunal ("the Tribunal") in respect of a decision of the Tribunal made on 22 July 1996. In that decision the Tribunal affirmed the decision of a delegate of the Minister to refuse the grant of a protection visa to the applicants pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). The application before this Court was initially made in the High Court on 18 September 2002. On 7 February 2003 the High Court remitted the matter to the Federal Court.

2 The application was made outside the time limit imposed by the High Court Rules for the making of an application for orders nisi for the issue of writs of certiorari and mandamus and, as a consequence, the applicants have sought an extension of time within which to apply for the issue of those writs.

3 The application for an extension of time came on for hearing before me on 17 September 2003 and, after argument, I reserved my decision on that application. On 21 October 2003 I published my reasons, concluding that the application for an extension of time in which to make the application for the issue of writs of certiorari and mandamus should be stood over to the hearing of the substantive application before the Court for the issue of a writ of prohibition and the associated relief. There is no time limit in the High Court Rules for the making of an application for a writ of prohibition.

4 The reasons of 21 October 2003 are found in Applicants M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146. In those reasons I set out the background to the application, the decision of the Tribunal, an analysis of the Court’s discretion to enlarge time and the ground of jurisdictional error relied upon by the applicants, namely that the Tribunal had failed to consider their status as "returnees". At that time the applicants were also relying upon an alleged failure of the Tribunal to apply the "real chance" test of persecution. However, when the hearing resumed the applicants relied upon one ground only, namely that failure of the Tribunal to take into account the applicants’ status as returnees.

5 I do not propose to repeat the recitation of facts or the reasoning and analysis set out in the earlier reasons; they should be read in conjunction with these reasons. However, it is necessary to incorporate the following passages from the earlier reasons in order to place in context the reasons set out hereafter:

"10. The RRT considered whether the applicants would face a real chance of persecution in the future by reason of their race or political opinion and referred to a considerable body of country information. Some of the material referred to supported the proposition that Colombo was not a safe haven for displaced Tamils. The material also referred to the fact that Tamils were exposed to danger including arbitrary arrest and detention and the risk of mistreatment in police custody. The RRT noted that Amnesty International was of the view that many Tamil returnees would not be able to live safely in any area of the country.

11. After referring to this country material the RRT said:

‘It is apparent from the reports referred to above that the situation regarding Tamils in Colombo deteriorated markedly after mid-1993. Some reports around that time did not qualify the risk to Tamils according to their age, gender or other factors. The reports indicated that many Tamils in Colombo face a risk of interrogation, detention, mistreatment or torture in custody and/or harassment, especially in the wake of violent actions by the LTTE, or allegations of such actions.’

In particular, the country material supported the proposition that Tamils returning to Colombo who had unsuccessfully sought asylum ran the greatest risk of detention on arrival. However, there was also material to the effect that Tamils returning to Colombo were more secure if they had friends or relatives in Colombo and a permanent address in that city.

12. The RRT concluded:

‘Recent country information indicates not only that persons having the profile of the applicant and his wife, including long-term association with Colombo and relatives there, do not face a real chance of coming to the attention of the authorities; if they do come to the attention of the authorities on the basis of their race, the strong indication is that they are released within a short time without being harmed, once they have been able to satisfy the authorities of their legitimate reason for being in Colombo.

In view of the applicants’ profiles and country information outlined above, the prospect of them being seriously harmed by the authorities for a Convention reason is remote, and the Tribunal so finds.

In considering all of the circumstances of this case, including cumulatively, the Tribunal finds that there is not a real chance, as defined by the High Court in Chan’s case, that the applicants would face persecution for a Convention reason if they were now to be returned to their country of origin.’

Accordingly the RRT affirmed the delegate’s decision to refuse to grant a protection visa to the applicants."

6 In the earlier reasons I considered that the applicants had an arguable case for contending that the Tribunal asked itself the wrong question and failed to address the correct or real question. It is critical to the applicants’ case that they had made a claim before the Tribunal that they had a well-founded fear of persecution on the basis of their position or status as returnees to Sri Lanka. In the earlier reasons I accepted for the purpose of the argument that the applicants had made such a claim. That issue must now be determined, as the Minister submitted that no such claim had been made by the applicants.

7 There is also the threshold question of whether the Court should make an order for the issue of a writ of prohibition. The issue of such a writ is discretionary and one of the factors which is to be taken into account is any delay which has occurred in relation to the application for the writ.

8 There is also the issue raised by the Minister that prohibition is not available as a remedy to restrain the Minister or an officer within the meaning of the Act from carrying out the administrative steps that follow under the Act once a visa application has been "finally determined", irrespective of any alleged jurisdictional error affecting the Tribunal’s decision. The Minister submitted that administrative steps cannot be properly characterised as the enforcement or execution of the Tribunal’s decision and that the principal relief which is available in such circumstances is the issue of writs of certiorari and mandamus directed to the Tribunal, which are subject to the time limits prescribed by the High Court Rules.

9 This latter issue was addressed by McHugh J in Re Ruddock; Ex parte Reyes (2000) 177 ALR 484. In that case the applicant and her family had applied for a special permanent entry permit. The Immigration Review Tribunal handed down a decision that neither the applicant nor her family were entitled to such a permit. The Minister proposed to deport the applicant and her family and in response an application was made to the High Court for orders nisi directed to the Minister and the Immigration Review Tribunal. A writ of prohibition was sought against the Minister prohibiting him or his agent or delegate from acting upon, or giving effect to, the Immigration Review Tribunal decision. The Immigration Review Tribunal was asked to show cause why a writ of certiorari and a writ of mandamus should not to be issued to quash the decision and have the application heard according to law. The applicant also sought an injunction restraining the Minister from deporting her and her family pending the hearing of the application for orders nisi. The applications were dismissed.

10 In the course of his reasons McHugh J, having concluded that there was no ground for the issue of orders nisi or the grant of an injunction, expressed the view that the relief sought was misconceived. His Honour said at 488:

"[23] In the first place, there is no ground whatever in a case such as the present for the issue of a writ of prohibition against the minister. As was conceded, as the law stands at the moment and on the facts of the case, the minister was under a duty, in accordance with s 198 of the Migration Act 1958 (Cth) (the Act), to deport the applicant. No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error.

[24] However, if the decision of the tribunal had been quashed and a further hearing ordered, it would be proper in an appropriate case to injunct the minister from deporting the applicant while the matter was still before the appropriate tribunal. But such an order against the minister would be incidental to the principal relief which would be obtained, namely, the quashing of the tribunal’s decision and the ordering of a further determination of the applicant’s claim before the appropriate tribunal

...

[27] If jurisdictional grounds had been made out in this particular case, a serious question would still arise as to whether or not writs of certiorari or mandamus should be directed to the tribunal. In my view, in a case of this nature, if there are grounds, the proper relief that should be sought is a mandamus directed to the tribunal to rehear the matter according to law, and certiorari to quash the original decision. In an appropriate case, it may be necessary also to restrain the minister from deporting the applicant pending the determination of the tribunal of the rehearing. But the principal relief would be mandamus and certiorari, not prohibition against the minister, which is not a relevant remedy."

11 These observations appear to be inconsistent with the approach taken by members of the High Court in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. In that case the orders made by the Court included the issue of a writ of prohibition prohibiting the Minister from taking action on the decision of the Refugee Review Tribunal.

12 There is also the associated question whether the issue of a writ of prohibition should be the principal relief to be sought in the circumstances presently before the Court. Merkel J so concluded in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054. I followed that decision in the earlier reasons. It was also followed by Heerey J in Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1338.

13 In the course of submissions, counsel for the Minister discussed the decision in Re Refugee Review Tribunal; Ex parte Aala (supra) and accepted that he had difficulty reconciling the approach of the High Court in Aala with the observations of McHugh J in Re Reyes.

14 I consider that in the present circumstances, and on the present state of authorities, I should adopt the approach of considering whether there is a basis for the issue of a writ of prohibition independently of whether there are grounds for the issue of writs of certiorari and mandamus.

15 The applicants submitted that it was a "component integer" of their claims that they had a well-founded fear of persecution simply because of their status as returnees to Sri Lanka. The Minister contested that this claim had been made by the applicants. Indeed the Minister submitted that such a claim had never been made before the Tribunal and that there was nothing in the applicants’ claims which required the Tribunal to address or determine whether they faced a real chance of being persecuted simply on the basis of their being returnees to Sri Lanka or failed asylum seekers. The Minister submitted that this was not a "component integer" of the applicants’ claims and that the Tribunal was not obliged to consider such claims as they had not been made. In the alternative it was the Minister’s case that the applicants did not claim to have any subjective fear of being questioned simply by reason of being returnees or failed asylum seekers. The Minister also submitted that in any event the Tribunal did address properly the issue whether the applicants would experience persecution upon their return to Sri Lanka.

16 The applicants submitted that the claim that they feared persecution simply because of their status as returnees had been made in the material placed before the Tribunal. Part of the passage in the material upon which they relied was set out in par [28] of the earlier reasons. That passage must be placed in context. In the statement of the male applicant, from which the passage is taken, the applicant had referred to the difficulties the applicants claimed they had faced in Sri Lanka before they left for Australia. According to the male applicant, two officers from the intelligence services called at his home in Colombo and threatened his mother if she did not tell the truth. His mother said that the applicants were in Australia, at which point, according to the male applicant, the officers became angry:

"They were angry and showed annoyance as if though they have been cheated and informed her that I should return to the country forthwith and if not I would have serious consequences."

The male applicant expressed concern that he did not know the type of information to which he had been linked by the intelligence officers. He then set out a number of issues involving Tamil people who are overseas. The male applicant then continued:

"They were linking me to some information about my overseas relatives and friends of theirs who have invested in the various companies or having visited Sri Lanka and stayed in such places and my assisting them. I do not know the level of information they have on me but they have statements and also documents collected from me. I was afraid to face further interrogation and torture to obtain confessions and, therefore, left the country. This will be held against me and on my return, I will be subjected to various questioning alleging that I had something to hide and that is why I fled from the country."

17 The Minister submitted that this passage, taken in context, demonstrated that to the extent to which the male applicant was raising a fear of being questioned on his return to Sri Lanka, his fear was explicitly connected to his claim that he was under investigation by the authorities.

18 I consider there is merit in this submission. When the relevant passages in the male applicant’s statement are read in sequence and in context, it is clear that he is fearing further interrogation and questioning because of his claim that he had been under investigation by the authorities both before and after he left Sri Lanka. One does not find in the material placed before the Tribunal by the applicants any particular or general claim by them that they feared persecution or oppression simply because of the fact that they were returning to Sri Lanka as a result of being failed asylum seekers.

19 The claim made by the male applicant that he feared persecution because the authorities had shown, and continued to show, an interest in him was rejected by the Tribunal. The Tribunal said:

"In considering all the material before it the Tribunal finds that the applicant was of no interest to the authorities who, therefore, not only enabled him to retain his passport, but gave him formal permission to leave the country."

20 The Tribunal had earlier rejected the male applicant’s claim that he had been involved in laundering money. The Tribunal said that claim lacked credibility. The Tribunal also noted that the male applicant had not claimed to have been involved in any activity, apart from money laundering, that would lead to a risk of harm within the meaning of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention").

21 On the basis of this analysis I consider that the Tribunal directly addressed the claims made by the applicants. There was no requirement for the Tribunal to address any issue that the applicants would suffer persecution simply because of their return to Sri Lanka or as failed asylum seekers, as no such claim was made by the applicants.

22 Nevertheless, I am satisfied that the Tribunal did address the issue whether the applicants would face a real chance of persecution in the future by reason of their race or political opinion. The Tribunal set out and analysed a considerable body of country information and then concluded, after the passage extracted in par [5] above, that the applicants’ profiles and the country information was such that any prospect of them being seriously harmed by the authorities was remote. Such was the finding of the Tribunal. The nature of the material addressed by the Tribunal in reaching this conclusion demonstrates that it took into account the treatment of returning asylum seekers.

23 It follows from this conclusion that the ground of error raised by the applicants, that the Tribunal had asked itself the wrong question or failed to address the real question, cannot be made out. In those circumstances it is not necessary to address the extent to which the delay in applying for the order nisi for the issue of a writ of prohibition is a disqualifying factor. If the error claimed by the applicants had been made out, it would have been necessary to address the issue of whether that error was such that the six year delay in applying for the issue of the writ should be excused. The proceeding, however, can be determined on the basis that there are no prospects of success. Accordingly, the application for leave to extend the time for applying for the writs of certiorari and mandamus should be refused and otherwise the application should be dismissed with costs.

24 I wish to record the indebtedness of the Court to senior and junior counsel for the applicants who appeared pro bono. The assistance of pro bono counsel in cases such as this is of great value to the Court as it enables critical legal issues to be investigated fully. I commend pro bono counsel for the comprehensiveness of their written submissions and the clarity of their oral argument.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated: 29 January 2004

Counsel for the Applicants:	Ms M Kennedy SC and Ms K Anderson
Solicitor for the Applicants:	Pushpa Hettiarachi & Associates
Counsel for the First Respondent:	Mr C Horan
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	15 December 2003
Date of Judgment:	29 January 2004