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Federal Court of Australia |
Last Updated: 28 January 2005
FEDERAL COURT OF AUSTRALIA
APPLICANT M87 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and ORS [2005] FCA 23
MIGRATION – protection visa – High Court
application for orders nisi for prohibition and certiorari – application
remitted
to Federal Court – procedural fairness – requirements
– alleged failure to bring adverse material to the attention
of the
affected party – whether requirements of procedural fairness breached in
the circumstances – where application
for certiorari out of time –
consideration of whether time limits in High Court Rules apply to remitted
application.
Judiciary Act 1903 (Cth),
s 44(2A)
Migration Act 1958 (Cth) ss 45,
486A
Migration Legislation Amendment Act (No 1) 2001 (Cth)
High Court Rules, O 16 r 2, O 55 r 17
Muin v
Refugee Review Tribunal and Lie v Refugee Review Tribunal in [2002] HCA 30; (2002)
190 ALR 601, considered
Thayananthan v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCA 1054; (2003) 132 FCR 222, discussed
Re
Minister for Immigration and Multicultural Affairs; Ex Miah [2001] HCA 22; (2001) 206 CLR
57, considered
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177
ALR 491, discussed
Kioa v West [1985] HCA 81; (1985) 159 CLR 550,
discussed
Lek v Minister for Immigration, Local Government and
Ethnic Affairs (1993) 43 FCR 100, discussed
WJ48/00A v Minister for
Immigration and Multicultural Affairs (2001) 185 ALR 703, referred
to
NADR v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCAFC 167, referred to
Re Refugee Review Tribunal;
Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, referred to
R v MacKellar; Ex parte
Ratu [1977] HCA 35; (1977) 137 CLR 461, referred to
Re Ross; Ex parte The Australian
Liquor, Hospitality and Miscellaneous Workers’ Union [2001] FCA 770; (2001) 108 FCR
399, referred to
Applicant A2 of 2002 v Minister for Immigration &
Multicultural & Indigenous Affairs [2003] FCA 576, referred to
Applicant A16 of 2002 v Minister for Immigration & Multicultural
& Indigenous Affairs [2003] FCA 567, referred to
Applicants
A64/2002 v Minister for Immigration & Multicultural & Indigenous
Affairs [2003] FCA 568, referred to
Re Ruddock; Ex parte LX
[2003] FCA 561, referred to
Applicant S70 of 2003 v Minister for
Immigration & Multicultural & Indigenous Affairs [2003] FCA 1338,
referred to
Applicant M162
of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1146, referred to
Applicant M162 of 2002 v Minister for
Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 23, referred to
Applicant S422 of 2002 v Minister for Immigration
& Multicultural & Indigenous Affairs [2004] FCAFC 89,
considered
P33 of 2003 v Refugee Review Tribunal [2004] FCA 474,
referred to
Applicant A184 of 2003 v Minister for Immigration &
Multicultural & Indigenous Affairs (2004) 210 ALR 543, referred
to
Applicant S70 of 2003 v Minister for Immigration & Multicultural
& Indigenous Affairs [2003] FCA 1338, referred to
S61 of 2002 v
Refugee Review Tribunal [2004] FCAFC 150; (2004) 206 ALR 461, referred to
Applicant
A219/ 2003 v Refugee Review Tribunal [2004] FCA 1311, referred
to
APPLICANT
M87 OF 2003 v THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH
OF AUSTRALIA, DR RORY
HUDSON, SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR ADOLFO GENTILE, IN HIS
CAPACITY AS SENIOR MEMBER OF THE
REFUGEE REVIEW TRIBUNAL
V 690 OF
2003
KENNY J
28 JANUARY
2005
MELBOURNE
|
APPLICANT M87 OF 2003
APPLICANT |
|
|
AND:
|
THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF
AUSTRALIA
FIRST RESPONDENT DR RORY HUDSON, SITTING AS THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT AND MR ADOLFO GENTILE, IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
|
THE COURT ORDERS THAT:
1. If an extension of time is required, it is refused.
2. The application for writs of prohibition and certiorari otherwise be dismissed.
3. The applicant pay the first 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.
REASONS FOR JUDGMENT
INTRODUCTION
1 The substantive issue in this proceeding is whether the Refugee Review Tribunal ("the Tribunal") erred by relying upon country information that related to the general situation in Sri Lanka, without giving the applicant an opportunity to respond to that information. There is a further issue as to whether an extension of time should be granted in respect of an application for certiorari.
2 The applicant, who is a citizen of Sri Lanka, arrived in Australia on 12 March 1995. He was accompanied by his wife and daughter. His two sons arrived in Australia about two months later. On 29 May 1995, the applicant applied for a protection visa pursuant to s 45 of the Migration Act 1958 (Cth) ("the Act"). He made this application upon the basis that he feared persecution on account of his association with the Janatha Vimukthi Peramuna ("JVP") political party, his campaigning against the Sri Lanka Freedom Party ("the SLFP") during the 1994 elections, and his work as a human rights activist. The applicant’s wife and the three children were included in his visa application.
3 On 31 July 1995, a delegate of the first respondent refused to grant the applicant a protection visa. On 24 August 1995, the applicant sought a review of the delegate’s decision by the Tribunal. After conducting a hearing, the Tribunal affirmed the delegate’s decision on 9 April 1996.
4 In 1998, the applicant was the thirty-fifth applicant in a proceeding in this Court that challenged the validity of the regulations preventing him from making an application for permanent residence. A Full Court of this Court dismissed the application on 24 November 1998.
5 The applicant did not seek to challenge the Tribunal’s 1996 decision until 2001, when he was named as a represented party in a proceeding instituted in reliance on O 16, r 12 of the High Court Rules. (References to the High Court Rules are references to the rules as they stood prior to their amendment by the High Court Rules 2004 (Cth) (No 304 of 2004.) This proceeding resulted in the decisions reported as Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal in [2002] HCA 30; (2002) 190 ALR 601 ("Muin and Lie"). The High Court delivered judgment in Muin and Lie on 8 August 2002.
6 As a result of the directions given by the High Court, on 22 May 2003, the applicant filed in that Court an application for orders nisi for prohibition and certiorari. The High Court remitted the matter to this Court pursuant to s 44(2A) of the Judiciary Act 1903 (Cth). The proceeding in this Court involves the hearing of the remitted application. On 9 October 2003, a judge of this Court ordered, amongst other things, that "[t]he application for an order nisi and the hearing of return of the order nisi, if granted, be conducted as a single hearing".
THE DECISION OF THE TRIBUNAL
7 The Tribunal’s reasons for decision make it clear that it considered that there were three bases for the applicant’s claim: (1) his association with the JVP; (2) his work against the SLFP; and (3) his human rights activities. After setting out the claims made by the applicant and his wife (both of whom gave evidence) the Tribunal recorded its agreement with the delegate "that there are many significant credibility problems with the application". The Tribunal went on to say:
The delegate thought it was unusual that the applicant’s contributions to the JVP began in 1990, at a time when the JVP was being "quashed" or "effectively wiped out". However, I do not see this as a problem; I accept as plausible the applicant’s explanation that he wanted to help the JVP at a time when the JVP needed it most.
I have more difficulty with accepting that the applicant was able to make large donations to the JVP at this time when he was said to have been unemployed between May 1989 and August 1991, although, as the delegate said, he had remained aloof from the party for almost 20 years. It was stated that he had much money saved from previous business activities and investments, but it is generally difficult to believe that the applicant, a wealthy businessman, was a strong supporter of a party with strong Marxist tendencies and support mainly from the poor and from youth.
The delegate also noted that the applicant, though testifying to numerous meetings of the JVP which had been held at his house, was unable to provide details of what was said at those meetings. The applicant’s explanation was that he and his wife were busy in the kitchen preparing food on such occasions. It is difficult to believe that a wealthy businessman and his wife took on such tasks, and occupied themselves with them all through the evenings when the meetings were taking place in their house, showing no interest in what was going on under their noses, although it might have had very serious implications for their safety.
As the delegate seems to have thought, it is very strange that the applicant, who kept reiterating his claims to be a man of peace, supported the JVP over such a long period when they were engaged in numerous and widespread acts of terrorism, murder of innocent civilians and other criminal violence. He said he kept hoping that the JVP would renounce violence and move to a peaceful political programme. In view of the record of the JVP, however, I find it not credible that the applicant could have maintained such a hope over such a long period.
I also agree with the delegate in having serious doubts as to the focus of the applicant’s activities in the 1994 elections being action against the SLFP. While it is true that the JVP was an independent party, not aligned to either major party, nevertheless it was considerably closer to the SLFP than to the UNP (United National Party, the governing party prior to 1994), and for some time it worked closely with, and supported, the SLFP. ...
I do not agree with the delegate, however, in suggesting that the applicant could not have been arrested on the day after the elections, as this was a public holiday. The applicant is right to say that the fact of its being a public holiday would not prevent the arrest of wanted persons.
I agree with the delegate in noting the applicant’s mistake in giving the name of the JVP leader in London, with whom he had supposedly been in close contact.
Apart from these matters, there are other credibility problems which I have observed.
8 It was at this point in its reasons that the Tribunal first mentioned a passport issue, the treatment of which is challenged in this proceeding. In relation to this issue, the Tribunal stated:
The applicant claimed to have been arrested on 10 November 1994 and detained until 20 December 1994. Yet his passport shows that its validity was extended by the Sri Lankan authorities on 16 November 1994. I am unable to reconcile these matters, particularly having regard to the following information from the Australian High Commission in Colombo (cable 34239 of 10 June 1992):
THE SRI LANKAN DEPARTMENT OF IMMIGRATION AND EMIGRATION ADVISES THAT SRI LANKAN PASSPORTS ARE ISSUED FOLLOWING THE PRESENTATION OF AN APPLICATION ACCOMPANIED BY A NATIONAL BIRTH CERTIFICATE AND NATIONAL IDENTITY CARD. ON LODGEMENT, THE APPLICATION IS SCRUTINISED AND A CHECK IS MADE OF A REGISTER OF NAMES AGAINST WHICH POLICE, COURTS AND OTHER AUTHORITIES HAVE ISSUED INSTRUCTIONS FOR A BAR TO BE PLACED ON PASSPORT ISSUE AND/OR DEPARTURE FROM THE COUNTRY. PERSONAL PRESENTATION OF THE APPLICATION IS REQUIRED EXCEPT WHERE MEDICAL REASONS DO NOT PERMIT.
ALL SRI LANKAN PASSPORT HOLDERS ARE CHECKED AGAINST THE REGISTER BY PASSPORT CONTROL AT THE PORT OF EMBARKATION. THIS SYSTEM IS CURRENTLY MANUAL, BUT PLANS ARE IN PLACE TO INTRODUCE A COMPUTERISED SYSTEM IN JANUARY 1993.
...
APART FROM THE USE OF GOOD FORGERIES, IT IS UNLIKELY THAT PEOPLE SOUGHT BY THE GOVERNMENT WOULD BE ABLE TO LEAVE. INDICATIONS ARE THAT THOSE WHO LEAVE THE COUNTRY LEGALLY AND WHO DO NOT ENGAGE IN TERRORIST RELATED ACTIVITIES ABROAD NEED NOT BE IN FEAR OF AUTHORITIES ON RETURN.
The applicant claimed to have had a friend in the Sri Lankan Immigration Departure who arranged these matters for him, but having regard to the date of extension of his passport and the ease of his departure with his wife and children I do not regard this as sufficient explanation in the light of the above cable.
9 The Tribunal went on to observe that there were also "significant problems in the way of accepting what the applicant said about his human rights involvement", including his inability "to give any details of the cases, except to mention briefly the most recent one". The Tribunal noted that it had been unable to find any information that might corroborate the applicant’s claim in this regard, adding:
... I think it is fatal that the applicant was unable to say what human rights group Father Pereira was working for or what happened to the information he passed onto him, and had not kept any evidence of these many cases in which he had allegedly been involved. I find it impossible to believe that a person vitally concerned about human rights, to the extent of placing himself in great danger by ferreting out information about human rights violations and then passing it on, would not know what happened to the information or whether his work was having any effect.
The applicant was unable to say why the information sent to Jagath Pereira was intercepted on this occasion, which happened to be just prior to his departure for Australia, when it had not been intercepted previously. I would consider this a most peculiar coincidence.
10 In summary, the Tribunal found that:
Having regard to all the evidence, I do not consider the applicant’s story credible. ... I do not seek to reject the applicant’s story outright. Rather, however, I believe he has been involved in some minor electoral activity against the SLFP during the 1994 elections (there are no particular credibility problems around this part of his story), and I extend the benefit of the doubt to him in accepting that he experienced certain intimidation because of this. I do not accept, however, that this included lengthy detention as he claimed, since I find this inconsistent with the extension of his passport at the relevant time. I also reject the claim that he had any significant involvement with the JVP or in raising cases of human rights violations. These claims, in my view, have been manufactured as a way of boosting the significance of his very limited activity against the SLFP.
11 The Tribunal further found as follows:
(a) Regarding his association with the JVP, the applicant "has had, at most, minimal involvement with the JVP". Referring, amongst other things, to cable CL37136 of 21 November 1994, cable CL37966 of 28 August 1995 and a UNHCR advice of 21 September 1995, the Tribunal added:
In the light of abundant and credible information that the JVP is now a legal political party and is no longer the subject of persecution by the Sri Lankan authorities, ... there is now no chance that the applicant would be persecuted for his past association with the JVP.
(b) Regarding his work against the SLFP, the applicant was opposed to the SLFP and did some work against it in the 1994 elections, which "may have caused some problems for him at the time and in early 1995 before he left the country" but there was "not a real chance that the applicant will now be persecuted because of his political opposition to the SLFP in 1994". The Tribunal observed:
Generally speaking, the [Country Reports on Human Rights Practices for 1995] note a great improvement in the human rights situation in Sri Lanka under the post-1994 government, contrary to what the applicant wishes to maintain.
In this context I point also to the ease with which the applicant was able to have his passport extended and leave the country with his family, and I note that his claim of being detained for a month in 1994 is not credible. Finally I point out that his activity against the SLFP in 1994 was not high-profile or significant, so that it is hardly worthy of major attention even if the present Government were given to persecuting its political opponents.
(c) The Tribunal did not accept that the applicant was involved in "any significant human rights activity in Sri Lanka" and did not accept that there was "a real chance that he would be persecuted there now for such activity".
(d) Even if the applicant was involved with the JVP to a greater extent than the Tribunal had found, there was no real chance of persecution facing the applicant because "the evidence of the safe status of JVP members and supporters today is overwhelming".
(e) Even if the applicant had a "rather more high-profile activity against the SLFP in 1994" than the Tribunal had found, there was not a real chance of persecution, "given the lack of evidence of any persecution of the SLFP’s political opponents".
(f) There was no viable hypothesis that the applicant was really involved in human rights activity, because of the major credibility problems to which the Tribunal had referred.
12 Having regard to its findings, the Tribunal therefore concluded that the applicant and his family did not have a well-founded fear of persecution in Sri Lanka for a Convention reason (see [27] below) and, accordingly, it affirmed the decision of the delegate.
THE PARTIES’ SUBMISSIONS
13 The applicant relied on contentions of fact and law filed on 29 October 2003 and on the further contentions of fact and law filed on 16 March 2004, which pro-bono counsel prepared on his behalf ("further contentions"). He was unrepresented at the hearing and did not seek to augment his written contentions with oral submissions. In addition to his affidavit sworn on 10 May 2003, the applicant also relied on an affidavit sworn by him on 16 March 2004, which was admitted into evidence, there being no objection from the respondents. There was no cross-examination. The first respondent relied on contentions of fact and law filed on 27 November 2003 and on oral submissions.
14 In his affidavit of 16 March 2004, the applicant said that, in its reasons, the Tribunal indicated that it took into account a number of matters that were not brought to his attention at the hearing or at any time before the Tribunal made its decision. The applicant identified these matters as the contents of three cables (namely, cable 34239 of 10 June 1992, cable CL37136 of 21 November 1994 and cable CL37966 of 28 August 1995) and the UNHCR advice of 21 September 1995. The applicant deposed that, if he had been aware of these matters, he would have obtained further information, in particular "to show that a passport could be obtained without personal attendance"; that "there was a distinction between government policy as set out in the cables and the true situation in Sri Lanka"; and that "[i]n 1995, JVP supporters were still being taken into custody and detained".
The applicant’s submissions
15 In his further contentions, the applicant accepted that the draft order nisi, which was required under the provisions of the High Court Rules, did not correctly state the orders that he required and, in so far as it was necessary to do so, he sought leave to amend. This application for leave to amend was not opposed and the hearing proceeded on the basis of the amendments outlined in the applicant’s further contentions. If it were necessary to do so, I would formally allow these amendments.
16 The more pressing procedural question concerned the extension of time sought by the applicant. In his further contentions, the applicant accepted that his application for certiorari was lodged outside the time allowed under O 55 r 17 of the High Court Rules. Relying on Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054; (2003) 132 FCR 222 ("Thayananthan"), the applicant contended that, if he succeeded in his application for a writ of prohibition, then the Court should, in order to regularise the record, extend the time for certiorari. The applicant further submitted that his affidavit of 16 March 2004 established that:
[T]he Applicant was involved in two other sets of legal proceedings concerning his status, that he has had limited access to legal representation and is impecunious. In the circumstances given the length of time his other cases have taken to be dealt with in the Courts, it is understandable that there has been delay. The current application was made by leave of the High Court and it would be wrong, it is submitted, to shut the Applicant’s case out from any consideration of the merits at this stage. The First Respondent does not point to any prejudice that it might suffer in the circumstances.
17 The applicant submitted that the Court should first consider the application for prohibition.
If it is found to be a sound one, then the question of exercise of discretion arises. If a writ of prohibition is to be issued then the Court should also extend time for certiorari and quash the Refugee Review Tribunal decision, if for no other reason than the existence of an invalid decision on the record might affect the ability of the Refugee Review Tribunal to consider the Applicant’s application again.
18 Referring to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 ("Ex parte Miah"), the applicant submitted that country information was at the core of the decision against him. The applicant contended:
[T]he Tribunal rejected the Applicant’s allegation of detention solely on the basis of the issue regarding his passport. That in turn is based entirely upon the country information set out [in] the decision and contained in cable 34239 of 10 June 1992. The Applicant had no opportunity to deal with that information as he was not aware it was to be relied upon. The other findings against the Applicant contained in [the quotation in paragraph 10 above] are not supported by reasoning but simply an expression of a view. It is likely that those contrary findings in turn are at least in part based upon the rejection of the Applicant’s allegation that he was detained because of the renewal of his passport.
19 After noting that the Tribunal raised the passport issue a second time (see paragraph 11(b) above), the applicant said, in his further contentions, that:
It is true ... as the First Respondent says, that the whole case against the Applicant is based upon a negative finding as to his credibility. However a very significant part of that finding is based upon country information which the Applicant was never given an opportunity to deal with.
The applicant also submitted that he was not given an opportunity to deal with the adverse country information set out elsewhere in the reasons of the Tribunal (at pages 15-18 of the Tribunal decision). This country information included information in cables CL37136 of 21 November 1994 and CL37966 of 28 August 1995 and the UNHCR advice. The applicant contended that:
Had the Tribunal formed a different view as to the applicant’s credibility, then it is indeed possible, [or] even likely, that a different decision may have been reached.
The applicant submitted that the Tribunal’s failure to accord him procedural fairness infected the findings of fact and the whole of the decision.
20 The Court should, so the applicant submitted, exercise its discretion in issuing a writ of prohibition in his favour. In his further contentions, he said:
If the Applicant’s submissions are accepted, then as a person affected by the impugned decision he would be entitled to prohibition almost as of right. The only consideration which the First Respondent can point to in this case is delay. That is explained in the Applicant’s affidavit. No detriment to the First Respondent is asserted. The Application for relief was made within the time allowed by the High Court following the decision in Muin v Refugee Review Tribunal. In these circumstances it is submitted that it would be inappropriate to refuse to exercise a discretion to grant relief. If prohibition is granted, then certiorari should be too ... .
The first respondent’s submissions
21 The first respondent contended that the application should be dismissed because the application was out of time and no extension should be granted; alternatively, the ground of review upon which the applicant relied was without substance.
22 Referring to Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 ("Ex parte Marks"), the first respondent contended that there should be no extension of time for the certiorari application, because there were no exceptional circumstances to explain the applicant’s delay in commencing this proceeding. The first respondent also submitted that the claim for prohibition should fail, because, amongst other reasons, there was undue delay in seeking relief and Thayananthan was "clearly wrong, and should not be followed".
23 Referring to numerous authorities, including Kioa v West [1985] HCA 81; (1985) 159 CLR 550 ("Kioa v West"), Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, Ex parte Miah and Muin and Lie, the first respondent submitted, first, that procedural fairness did not require the Tribunal to disclose to the applicant all of the information upon which it relied in reaching its decision; and secondly, that adverse country information must be disclosed to an applicant only if that information was "of crucial importance", "determinative" or "decisive" of the application for review. According to the first respondent, none of the country information relied upon by the applicant to establish breach of natural justice was "decisive" or of "crucial importance" to the Tribunal’s decision, because the decision was based principally upon the "many significant credibility problems with the application". Referring to WJ48/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167, the first respondent contended that "[i]n light of the Tribunal’s strong findings against the applicant in relation to his credibility, which cannot be attacked in this Court, the [decision] was inevitable."
24 In oral submissions, the first respondent reiterated these contentions. Counsel further submitted that the decisions in Ex parte Miah and Muin and Lie were based upon the rule that in cases before the Tribunal procedural fairness only required that a decision-maker bring to an applicant’s attention the critical issue upon which the decision was likely to turn. Counsel submitted that the rule that a decision-maker bring adverse information that is credible, relevant and significant to the attention of the person concerned was not relevant in the present case because the country information was not adverse. The information was not adverse because it did not contain any imputation against the applicant. It was injurious to his case only because it was inconsistent with the claims made by him. According to counsel, an analysis of Muin and Lie supported the proposition that only country information that was critical, determinative or decisive to a decision must be disclosed to an applicant. Counsel submitted that the information in cable 34239 of 10 June 1992, though relevant, was not information of this kind. None of the other country information could be regarded as adverse in the relevant sense. The Tribunal’s decision turned on numerous adverse credibility findings concerning all elements of his claim, only one element of which related to detention, which was, in turn, affected by the passport issue. On a fair reading of the Tribunal’s reasons, it was impossible, so the first respondent submitted, to fix on this or any other particular item of country information as a critical factor in the decision-making.
CONSIDERATION
25 I propose first to discuss the substantive issue raised in this case, namely, whether any breach of procedural fairness is shown. Subject to the matter of discretion, a writ of prohibition and certiorari may issue if a breach of procedural fairness is established: see, e.g., Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [5] per Gleeson CJ; [17], [42], [59] per Gaudron and Gummow JJ; [142] per Kirby J; [170]-[171] per Hayne J; Ex parte Miah at [26] per Gleeson CJ and Hayne J; [148] per McHugh J; Muin and Lie at [201] per Kirby J.
26 The authorities express two views on the nature of the obligation of an administrative decision-maker to act in conformity with the rules of natural justice. In Kioa v West, at 584, Mason J described the obligation as "a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." Also in Kioa v West, at 614-615, Brennan J described conformity with the principles of natural justice as an implication to be drawn from the statute conferring the decision-making power. As Gaudron J said, however, in Ex parte Miah at [89]:
The difference between the two views may not be as great as might at first appear. Thus, in Annetts v McCann [(1990) [1990] HCA 57; 170 CLR 596 at 604], Brennan J explained that the implication arises because "the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power".
[Some footnotes omitted]
27 Leaving this difference of opinion aside, the decision in Muin and Lie establishes that, having regard to its governing statute, the Tribunal is bound by the rules of natural justice. Accordingly, it must act in a manner that is procedurally fair: see Ex parte Miah at [96] per Gaudron J; [129] per McHugh J; [188] per Kirby J; Muin and Lie [61] per Gaudron J; [122] per McHugh J; [226] per Kirby J. Thus, the Tribunal must give an applicant a reasonable opportunity to present a case that he or she is a refugee, as defined in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Refugee Convention"), and to answer any material in the Tribunal’s possession that tends against this status: see Ex parte Miah at [99] per Gaudron J; [127] per McHugh J; Muin and Lie at [61] per Gaudron J.
28 What this requires of a decision-maker in any particular case depends not only upon the statute pursuant to which the decision is to be made, but also upon the particular circumstances of the case: see, e.g., Muin and Lie at [123] per McHugh J; [236] per Kirby J; Ex part Miah at [129], [143] per McHugh J; Kioa v West, at 611, per Brennan J; R v MacKellar, Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 at 465-466 per Barwick CJ. The first respondent’s submissions pay insufficient regard to the need to consider the circumstances of each case: there is no rule that adverse country information must be disclosed only if it is "of crucial importance", "determinative" or "decisive" of an application, as the first respondent submits. I do not consider that Ex parte Miah and Muin and Lie stand for this proposition, although these cases recognise that the nature and the significance of information affects what procedural fairness requires. As Brennan J said in Kioa v West, at 612:
The content of the principles which the legislature intends to be applied in the circumstances of a particular case cannot be discovered by reference solely to the statute. ... .
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
29 In a case such as the present, the basic rule is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with any matters relevantly adverse to his or her interests, which the decision-maker proposes to take into account. As Brennan J put it in Kioa v West, at 629, "in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made." This is the guiding principle, including in cases before the Tribunal: see Ex parte Miah at [140] per McHugh J; [191] per Kirby J; Muin and Lie at [123] per McHugh J; [227] per Kirby J. Cases like Lek (see [23] above) are applications of this rule of procedural fairness, which was breached in that case because country information was not put to the applicant, although decisive of the outcome of the applicant’s refugee status: see Lek at 130 per Wilcox J.
30 The majority judgments in Ex parte Miah and Muin and Lie confirm that, in this context, there is this one fundamental rule. Thus, in Ex parte Miah at [140], McHugh J referred to Brennan J’s statement of this rule, before saying at [141]:
In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant’s claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it. [Emphasis original]
31 Referring to the particularities of the case, McHugh J went on to say in Ex parte Miah at [142]:
Here the new material was undoubtedly decisive of the prosecutor’s claim. The material was totally new. The election took place in Bangladesh more than two months after the application was made in April 1996. The reports relied on by the delegate were issued three months and nine months respectively after the application was made. The delegate’s decision was made more than thirteen months after the date of the application. But over and above these considerations is the fact that it was seemingly irrelevant to the prosecutor’s fears whether or not the Awami League or the BNP were in government. Both political parties were arguably unable or unwilling to offer the prosecutor protection from the Islamic fundamentalists – according to the prosecutor they were in coalition with them. ... Furthermore, the prosecutor could not reasonably have expected this type of information to be used. Certainly, he could not reasonably have been expected to provide information about a matter that he reasonably perceived as irrelevant to his situation.
32 Kirby J also treated Ex parte Miah as an application of the one basic rule, holding that there were "special considerations which suggested that the delegate was obliged to call the information on which he acted to the notice of the prosecutor", including a delay not of the prosecutor’s own making and that the information was "judged of crucial importance, even determinative, for the outcome of the application": see Ex parte Miah at [193]. His Honour said further at [195]:
In a sense, the greater the significance of the information, the more pressing became the necessity to disclose it to the prosecutor for his submission or comment.
33 In Ex parte Miah, Gaudron J agreed with McHugh and Kirby JJ in the result, holding, at [86], that the delegate constructively failed to exercise jurisdiction. Although strictly unnecessary to do so, her Honour also found, at [99], that there was a breach of the basic rule of procedural fairness because Mr Miah was not given an opportunity to deal with matters concerning the change in government in Bangladesh, by reference to which circumstance the Tribunal rejected his application: see Ex parte Miah at [77] and [99].
34 In Muin and Lie at [123], again referring to Brennan J’s statement of the basic rule, McHugh J found that, in the case of Mr Muin, the country information was critical to the outcome of the decision, "even if less acutely so than it was in Mr Miah’s case": see Muin and Lie at [135]. His Honour also remarked, at [133], that "[w]hether or not an issue is obvious is usually of fundamental importance in determining whether a person affected by the exercise of power should be given an opportunity to make submissions". These considerations alone did not, however, dictate the outcome of the case. His Honour’s conclusion that there had been a breach of the rule of procedural fairness depended on a consideration of all the specific and relevant circumstances. Thus, his Honour said at [137]:
Did procedural fairness require the Tribunal member to tell Mr Muin that she was considering the policies of President Habibie and the assurances of the Army as evidence that the government would offer protection? It is an issue on which reasonable minds might differ. But I think that she should have told him. Although the general issue of government protection was at the forefront of the case, the policies of a new President and the assurances of the Army were not issues in the case. I do not think that it was obvious that these two matters – particularly the assurances of the Army – would be decisive of the outcome of the review, as arguably they were. The change of government occurred after Mr Muin had made his submissions. At the hearing he had not been asked whether a change of government might make a difference. Nor was he asked about the assurances of the Army. If he had been asked, he might have pointed to the material that suggested that the policies of the new President and the assurances of the Army had failed or were likely to fail. ...
35 Gleeson CJ, who regarded Ex parte Miah as determinative of Muin and Lie, also treated these cases as mere applications of the rule of procedural fairness that an affected person must be given an opportunity to deal with matters adverse to his or her interest: see Muin and Lie at [30]. Although not the principal ground of their Honours’ decisions, Gaudron and Kirby JJ also treated Muin and Lie as applications of this rule: see Muin and Lie at [64] per Gaudron J; [236] per Kirby J. Kirby J specifically discussed the circumstances in Mr Muin’s case that were relevant to the rule, observing, at [236], that:
What the law required in Mr Muin’s case depended on the nature of the claims made by him and the information provided by the Secretary to the Registrar. Mr Muin was not given the opportunity to put the case that he wished in relation to the change of government in Indonesia or to answer the case made against him by reference to materials presented about that change with the authority of the DFAT cable. This constitutes a breach of a "basic principle" of procedural fairness. Further, the information "was decisive of the outcome of the application". Accordingly, the Tribunal ought to have informed Mr Muin of the new material.
For present purposes, it is unnecessary to
discuss the dissenting judgment of Hayne J, with whom Gummow J relevantly
agreed, or the
judgment of Callinan J, who agreed with the majority in the
result: see Muin and Lie at [264] and [267] per Hayne J; [302] per
Callinan J.
36 The relevant questions is, therefore, whether the Tribunal in the present case failed to give an opportunity to the applicant to deal with relevant matters adverse to his interests, which it proposed to take into account? Or, put another way, did the Tribunal fail to give the applicant an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made? For the following reasons, I do not think so.
37 It is plain from the Tribunal’s reasons that it did not believe the applicant’s account of his involvement with the JVP, his opposition to the SLFP, or his human rights activities. The Tribunal’s decision was, as the first respondent submitted, principally an expression of its disbelief in the applicant’s account, considered overall. Most of its findings about the applicant’s credibility were unrelated to the country information in the Tribunal’s possession. Thus, before discussing the country information, the Tribunal found that:
(a) It had "difficulty" accepting that the applicant was able to make large donations to the JVP at a time when he was unemployed, having remained "aloof" from the party for twenty years.
(b) It was "generally difficult" to believe that the applicant, as a wealthy businessman, was a strong supporter of a party with strong Marxist tendencies and support mainly from the poor and from youth.
(c) It was "difficult" to believe that, despite his claims that numerous JVP meetings were held at his house, the applicant did not know what occurred at those meetings because he occupied himself preparing food in the kitchen.
(d) It was "very strange" that the applicant supported the JVP over a long period when they were engaged in numerous and widespread acts of terrorism, when he claimed to be a man of peace.
(e) It had "serious doubts" about the focus of the applicant’s activities during the 1994 elections against the SLFP, since the SLFP was more aligned to the JVP than the governing United National Party.
(f) It noted the applicant’s mistake in giving the name of the JVP leader in London, with whom he had supposedly been in close contact.
(g) It was "impossible" to believe that a person who was vitally concerned about human rights, to the extent of placing himself in great danger by obtaining information about human rights violations and passing it on, would not know what happened to the information, or the organisation to whom the information was sent.
38 The Tribunal referred to country information in relation to only one of its findings affecting credibility. That is, the Tribunal made use of country information in rejecting the applicant’s claim to have been detained between 10 November 1994 and 20 December 1994. The country information contained in cable 34239 of 10 June 1992 did not directly contradict this claim, but it was used by the Tribunal to support its conclusion, first, that the claim was inconsistent with the extension of his passport in the claimed period of detention and, secondly, that his explanation regarding his passport (and the ease of his departure) should not be accepted.
39 I reject the applicant’s claim that there was a breach of procedural fairness because he was not given an opportunity to deal with the contents of cable 34239, which concerned the procedures governing the extension of Sri Lanka passports and departure from that country. The Tribunal failed to accept the applicant’s claim regarding his detention principally because: (1) the authorities extended his passport during the claimed period of detention; and (2) the Tribunal declined to accept his explanation regarding this extension and the ease of his departure from Sri Lanka. It may be inferred from the fact that the applicant gave an explanation about the extension of his passport and the ease of his departure that he was aware (either because the Tribunal told him or its concerns were obvious) that the Tribunal regarded these two matters as inconsistent with his detention claim. Accordingly, the real gravamen of the applicant’s complaint in this regard is that his explanation was not accepted. He cannot complain that he had not been heard upon the pertinent issues.
40 It may also be borne in mind, as a relevant circumstance, that the cable was not necessarily determinative even of the applicant’s detention claim, because the Tribunal treated its contents as corroborative of a view to which it was already inclined about the significance of the extension of the applicant’s passport and the ease of his departure. Even if this were wrong, the contents of the cable were plainly not critical to the outcome of the applicant’s case as a whole, because the rejection of his detention allegation was only one of a number of findings that were adverse to the applicant and his credibility.
41 I also reject the applicant’s claim that there was a breach of procedural fairness because he was not given an opportunity to deal with the contents of cables CL37136 of 21 November 1994 and CL37966 of 28 August 1995 and the UNHCR advice of 21 September 1995, all of which concerned the consequences of involvement with the JVP. With the exception of the passport issue, the Tribunal did not discuss the country information in its possession until after it had made its findings about the applicant’s credibility. The Tribunal stated that it had a "positive state of disbelief" in the applicant’s account and that it specifically rejected his claim that he had any significant involvement with the JVP and in human rights activities before referring to the country information in cables CL37136 and CL37966 and the UNHCR advice. Once the Tribunal found, as it did, that the applicant did not have any significant involvement with the JVP, the contents of these cables and the advice were in fact immaterial to the decision, because they related to a circumstance that did not affect the applicant (i.e., the consequences of involvement with the JVP). The Tribunal’s discussion of this country information was, at most, confirmatory of a conclusion that it had already reached on other grounds. It follows that this country information was in no sense critical to the outcome of the decision.
42 Moreover, the applicant must have been aware that the consequences of JVP involvement would be a matter for the Tribunal to consider because the effect of his alleged JVP involvement was at the core of his claim for refugee status. Put another way, the relevance of information of the kind contained in these cables and the UNHCR advice, all of which were in existence in late 1994 or 1995, would have been obvious to the applicant at the time he made his application. In this circumstance, it cannot be said that the applicant would have been taken by surprise by the contents of cables CL37136 and CL37966 and the UNHCR advice and that he did not have an opportunity to present his own case with regard to JVP involvement.
43 Accordingly, I reject the applicant’s submission that there has been a breach of the rules of procedural fairness on the Tribunal’s part.
EXTENSION OF TIME
44 As the first respondent noted, this proceeding is not affected by s 486A of the Act, which does not apply to decisions made prior to 27 September 2001: Migration Legislation Amendment Act (No 1) 2001 (Cth) (No 129 of 2001), Sch 1, item 5(3). As we have seen, at the hearing and in submissions, the first respondent argued the matter upon the basis that, in the absence of an extension of time, the application for a writ of certiorari made in this proceeding was barred by O 55 r 17 of the High Court Rules. Order 55 r 17 provides that an application for certiorari must be made within six months of the date of the decision to be quashed. At the time of the hearing, it was accepted that this Court had power to enlarge time: see Re Ross; Ex parte The Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2001] FCA 770; (2001) 108 FCR 399 ("Re Ross") at 409 per Gray, Lee and Stone JJ.
45 In outlining the considerations governing an application for an enlargement of time under the High Court Rules, McHugh J said in Ex parte Marks at [15]-[16] that:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. ...
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. ... The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.
Judges of this Court have adopted this approach in
cases remitted from the High Court when considering applications for the
extension
of time for certiorari and mandamus: see Applicant A2 of 2002 v
Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [7] per von Doussa J; Applicant A16 of 2002 v Minister
for Immigration & Multicultural & Indigenous Affairs [2003]
FCA 567 at [8]- [19] per von Doussa J; Applicants A64/2002 v
Minister for Immigration & Multicultural & Indigenous Affairs [2003]
FCA 568 per von Doussa J at [9]; and Re Ruddock; Ex parte LX
[2003] FCA 561 at [41]- [44] per Heerey J.
46 In his affidavit of 16 March 2004, the applicant said that, at the time he was notified of the Tribunal’s decision, he "had no money available to pay for legal advice or fund legal proceedings". He added:
I was also a holder of a class 435 Visa. This was a special class of visa created for people who had come to Australia from Sri lanka, as I had. People who held such visas and had arrived in Australia before November 1993 became eligible in 1997 to apply for permanent residence. People who arrived after 1993, as I did, were not eligible to make such an application.
After referring to his involvement in proceedings in this Court and in the High Court, the applicant deposed:
I did not take additional proceedings to review the Refugee Review Tribunal Decision until May 2003 because those matters were before the Courts and because of my financial situation.
47 In the present case, I would not regard the explanation proffered by the applicant as necessarily calling for an exercise of discretion in the applicant’s favour, bearing in mind the lengthy delay. It may have been otherwise if the merits of the substantive application had been stronger than they were. If it were necessary to do so, I would not, however, grant an extension of time for certiorari in this case.
48 As already noted, the applicant relied on Thayananthan, in which Merkel J said that, since there was no time limit for applications for prohibition in the High Court Rules, prohibition could issue to prevent the first respondent acting on the basis of an invalid decision of the Tribunal, whether or not certiorari or mandamus were granted: see Thayananthan at [24]-[25]. His Honour went on to say that, if it were decided that prohibition should issue, then certiorari should issue (and any necessary enlargement of time made) in order that the record reflected the true legal position in respect of the decision: Thayananthan at [26]-[27]. Merkel J concluded, at [31]:
[I]t would be wrong to dismiss applications for constitutional writs of prohibition, mandamus and certiorari on the basis that the proceeding for mandamus and certiorari is out of time under the Rules, unless the Court has also determined ... that prohibition is not a proper or available remedy in the particular circumstances of the case.
As already noted,
the first respondent submitted that Thayananthan should not be followed,
although acknowledging that the decision has been followed by other judges of
the Court: see, e.g., Applicant S70 of 2003 v Minister for Immigration &
Multicultural & Indigenous Affairs [2003] FCA 1338 at [12] per Hely J;
Applicant M162 of 2002 v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCA 1146 at [36], [40] per Goldberg J;
Applicant M162 of 2002 v Minister for Immigration & Multicultural &
Indigenous Affairs (No 2) [2004] FCA 23 at [12], [23] per Goldberg J.
49 Since this case was argued, however, some judges of the Court have approached the time limits question from a different perspective. After examining the question in Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89, Dowsett and Lander JJ said at [29] and [34]:
It is difficult to avoid the conclusion that O 55 is ‘directed to governing or regulating’ the conduct of the proceedings in the High Court. If so, the decision in [John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503] would suggest that the time limits in rr 17 and 30 are procedural rather than substantive. It would then be difficult to see any role for the O 55 limitation periods in proceedings which have been remitted to this court (where there are no such procedural limitations), save where the High Court remits an application for an extension of time or directs that the High Court Rules or some part thereof should continue to apply to the remitted matter. Delay will still be relevant in exercising the discretion to grant relief.
...
The decision in Re Ross seems to suggest that this provision transports Orders 55 and 60 of the High Court Rules into Federal Court practice. We cannot see why that should be so. The notion of "insufficiency" implies some inadequacy in the Federal Court Rules as they apply to a particular case. We do not see any insufficiency inherent in either the absence from those rules of limitation periods such as those found in O 55 rr 17 and 30 of the High Court Rules, or in the absence of any power to extend such periods.
50 See also P33 of 2003 v Refugee Review Tribunal [2004] FCA 474 at [25] per French J. Lander J referred to this approach in Applicant A184 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 543 at [51]–[61] and so too did the Full Court in Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 182 at [15] per Emmett, Conti and Selway JJ. See also S61 of 2002 v Refugee Review Tribunal (2004) 206 ALR 461; [2004] FCAFC 150 at [3] per Moore J and Applicant A219/2003 v Refugee Review Tribunal [2004] FCA 1311 at [8] per Finn J, expressing a preference for this approach. If this analysis is correct, and I am inclined to think it is, then no extension of time for an application for certiorari or mandamus is necessary in any event.
DISPOSITION
51 For the reasons stated, I would order:
(1) If an extension of time is required, it is refused.
(2) The application otherwise be dismissed.
(3) The applicant pay the first respondent’s costs of and incidental to the application, including any reserved costs.
I would add that, in this case, the Court was greatly assisted by the careful submissions prepared on the applicant’s behalf by pro bono counsel.
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I certify that the preceding fifty-one (51) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Kenny.
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Associate:
Dated: 28 January 2005
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Applicant self-represented at hearing; further written submissions prepared
for the applicant by W L Friend (pro bono counsel)
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Counsel for the Respondent:
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Dr S Donaghue
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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30 April 2004
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Date of Judgment:
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28 January 2005
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