M152 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 128 (14 May 2004)

M152 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 128

M152 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V1170 OF 2003

MOORE, SACKVILLE & EMMETT JJ
14 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1170 OF 2003

BETWEEN:	M152 OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, SACKVILLE & EMMETT JJ
DATE OF ORDER:	14 MAY 2004
WHERE MADE:	MELBOURNE

3. The appellants pay the respondent’s costs of the appeal.

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	V1170 OF 2003

BETWEEN:	M152 OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, SACKVILLE & EMMETT JJ
DATE:	14 MAY 2004
PLACE:	MELBOURNE

1 The appellants are father and son. They are citizens of Sri Lanka and arrived in Australia on 8 November 1999. On 15 November 1999 they lodged an application for protection (Class XA) visas under the Migration Act 1958 (Cth) (‘the Act’). On 24 February 2000 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant protection visas to them and on 20 March 2000 the applicants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 30 March 2001, the Tribunal affirmed the decision not to grant protection visas.

2 The applicants then applied to the Federal Court of Australia for review of the decision of the Tribunal under ss 475 and 476 of the Act, as they then stood. On 7 August 2002 that application was dismissed with costs by Sundberg J. Notwithstanding that an appeal from the orders dismissing that application was available to the appellants as of right, they declined to take that course. Rather, on 6 September 2002 they applied to the High Court of Australia for an order nisi requiring the Tribunal and the Minister to show cause why writs of prohibition, certiorari and mandamus should not be issued out of the High Court. The grounds specified in the draft order nisi filed in the High Court were that:

3 The further proceedings in relation to the application to the High Court were remitted to the Federal Court by Hayne J on 7 February 2003. At that stage, no substantive consideration had been given by the High Court to the application. However, on 29 May 2003 a document described as ‘Amended Application’ was filed in the Federal Court. By the Amended Application, the applicants claimed constitutional writ relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Tribunal.

4 The applicants also claimed, to the extent necessary, an enlargement, pursuant to O 60 r 6 of the Rules of the High Court, of the time within which to make their application to the High Court. Under O 55 r 17(1) of the High Court Rules, an order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, must not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law. Under O 55 r 30, an application for a writ of mandamus to a judicial tribunal to hear and determine a matter must be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the court or a justice. Order 60 r 6(1) authorises a court or justice to enlarge the time appointed by the Rules for doing an act and, under r 6(2) an enlargement of time may be ordered although the application for it is not made until after the expiration of the time appointed or fixed.

5 On 10 December 2003, a judge of the Federal Court ordered that the application for an extension of time within which to commence the proceeding be refused and that the proceeding be dismissed with costs. On 30 December 2003, the appellants filed a notice of appeal to the Full Court of the Federal Court from the orders made on 10 December 2003.

6 On 10 February 2004, the Chief Justice ordered that any application for leave to appeal from the orders of 10 December 2003, together with any application for an extension of time within which to apply for leave to appeal, be filed and served by 27 February 2004. No application was filed by that date and, on 4 March 2004, the Minister filed notice of objection to the competency of the appeal on the grounds that the orders of 10 December 2003 were interlocutory and that, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), an appeal cannot be brought from those orders unless the Court or a judge gives leave to appeal.

7 On 5 April 2004 the appellants filed an application for orders that, to the extent necessary:

The application was supported by an affidavit by the solicitor for the appellants purporting to explain why no application had been made for leave prior to 5 April 2004.

8 The Minister contends that the orders made by the primary judge on 10 December 2003 were interlocutory and that leave to appeal was required. Since no leave was sought within the time prescribed by the Rules and the notice of appeal was also filed outside the time limited for filing an application for leave to appeal, the Minister contends that leave is also required for the bringing of an application for leave to appeal out of time.

9 Those contentions depend upon the Minister’s primary contention that the provisions of the Rules of the High Court concerning time, which are referred to above, continue to apply to a proceeding after its remitter to the Federal Court. The appellants dispute that proposition and contend that the matter was dealt with before the primary judge on a final basis.

10 Before dealing with the substantive claims made by the appellants, it would be necessary to consider all of those questions. However, the Court has heard argument on the substantive claims made by the appellants. Both the appellants and the Minister accept that, if the Court is of the view that there is no substance in the claims of the appellants, there is no utility in considering those procedural questions. Rather, it would be appropriate for the Court simply to order that, if any leave is required, leave should be refused and that, if no leave is required, the appeal be dismissed. It is appropriate, therefore, to consider the substantive claims made on behalf of the appellants.

11 So far as is presently relevant, the appellant father claimed that in 1992 he was instrumental in bringing two men to justice for scheming to cause harm to the late Lalith Athulathmudali MP. He claimed that, on information that he provided, the two men were arrested and, after trial, sentenced to imprisonment. The Tribunal found the appellant father’s claims in that regard to be ‘far fetched’. It found his evidence to be vague and generally implausible.

12 The Tribunal’s reasons record that the appellant father was unable to provide any detail about the two men, either in his original submission or at the hearing. When asked for information about the two men at the hearing, the appellant father said that he did not know their names other than ‘by their moniker’, as the Tribunal put it. He had no detail of what they intended to do and did not know what they were charged with. He did not know when or where the proceeding against them took place other than it was probably heard in Colombo.

13 The Tribunal found it difficult to accept that the appellant father would be unable to provide any of the basic details as to the two men, especially any details as to their identities or what they intended to do. The Tribunal considered that the appellant father’s inability to provide such information was inconsistent with his being instrumental in foiling an assassination attempt.

14 Nevertheless, the Tribunal gave the appellants the opportunity of providing further information concerning the two men. In the course of the hearing before Tribunal on 15 August 2000, the Tribunal indicated to the appellant father that it had no evidence before it of who the two men actually were or any record of their going before a court in what would presumably have been a public trial. The Tribunal said that it would have a search made of its data bases to see if the names came up and asked the appellants’ representative, who was a solicitor, whether he would ascertain whether the appellants might have access to the actual names of the two men so that it could be at least established that there were two people with those names that were sentenced. The representative said that he would see whether he could make a few calls to Colombo to see whether there was any way of doing what was suggested. The Tribunal observed that ‘we’ll see if we can establish some independent evidence about the conviction of these two gentlemen... and any material related to the circumstances of the conviction’.

15 On 23 August 2000, the Tribunal wrote to the appellant father, requesting, inter alia, the following additional information:

The Tribunal requested the information by 30 August 2000. On that day, the appellants’ solicitors wrote to the Tribunal requesting a one week extension to submit information and documents. The Tribunal, by letter of the same day, extended the time to 6 September 2000.

16 Under cover of a letter dated 6 September 2000, the appellants’ solicitors forwarded a further submission to the Tribunal relevantly saying:

Further the applicant was informed that following the arrest of [a name was inserted] in June 1992, the other suspect [a name was inserted] went into hiding and later he was arrested in November 1992.

Charged for inhumanly committing a murder using the fire arm. (The applicant was also informed that the above murder took place in 1988 and it was an unsolved case.)

...a letter faxed to the applicant by his friend [name inserted] in Sri Lanka who found out all the information and gave to the applicant on the applicant’s request.

17 In its reasons, the Tribunal said that it had considered the information thus submitted by the appellants and characterised it as ‘relating to the criminal profiles of two felons on murder and related charges and [the appellant father’s] claim that they were convicted based on evidence supplied by [him]’. The Tribunal then went on to say:

18 The Tribunal found, in conclusion, that the appellant father had not reported two men to the police. Having not accepted that claim, the Tribunal did not accept that the appellants would be pursued by two men as they claimed. The Tribunal did not accept that the appellant father or the appellant son face a real chance of persecution for political opinion or any other Convention reason if they returned to Sri Lanka now or in the reasonably foreseeable future.

19 Section 45 of the Act provides that a non-citizen who wants a visa must apply for a visa. Section 46 specifies when an application for a visa is valid. Section 47(1) provides that the Minister is to consider a valid application for a visa. Section 65 then provides that, after considering a valid application for a visa, the Minister, if satisfied as to certain matters set out in s 65(1)(a), is to grant the visa.

20 In the amended application, the appellants claim that the decision of the Tribunal was made:

21 The particulars of the alleged excess of jurisdiction and alleged constructive failure to exercise jurisdiction, so far as presently relevant, were that the Tribunal failed to accord procedural fairness to the appellants because it:

22 The primary judge concluded that, in the absence of an applicable rule of procedure, and subject to any order of the Federal Court, the Rules of the High Court were to be applied in a proceeding remitted by the High Court, by operation of s 38(2) of the Federal Court of Australia Act. On remitter, in the absence of any order by the High Court or the Federal Court, the starting point is that the times fixed by O 55 of the High Court Rules apply in the Federal Court and the Federal Court can exercise the power contained in O 60 of the High Court Rules. His Honour concluded that nothing had been put to him that outweighed the obvious importance of procedural consistency between proceedings conducted in the High Court and proceedings conducted in the Federal Court on remitter.

23 The Minister also contended before the primary judge that the earlier determination by Sundberg J in the Federal Court, of issues arising from the decision of the Tribunal, barred the appellants from any relief in the present proceeding, by the operation of the principles of res judicata, issue estoppel and Anshun estoppel (‘the Estoppel Bar’). The appellants contended, however, that the issues that they now seek to ventilate were not available in the earlier proceeding before Sundberg J and therefore the Estoppel Bar does not arise.

24 The primary judge considered the merits of the appellants’ claims before embarking on a consideration of questions of extension of time for commencement of the proceeding in the High Court and the Estoppel Bar. His Honour concluded that all of the substantive grounds upon which constitutional writ relief was claimed were without merit and had no prospect of success. Accordingly, his Honour refused the application for an extension of time within which to commence the proceeding. It was therefore unnecessary for his Honour to consider the contentions advanced on behalf of the Minister in relation to the Estoppel Bar. However, his Honour said that, in light of his conclusions on the substantive merits of the appellants’ claims, he would have dismissed the application, even if no question of time limits and no question of the Estoppel Bar had arisen.

25 The appellants contended that the Tribunal represented that they should, and that the Tribunal would, make further inquiries to see if particular details about the two men could be obtained. By doing so, so it was said, the Tribunal represented that its decision would not be based solely upon the material provided by the appellants at the hearing but that it would also take into account the information, if any, provided in response to the Tribunal’s request. They say that, on a fair reading of the Tribunal’s reasons, the Tribunal ignored the additional information provided.

26 The appellants contend that, in those circumstances, the Tribunal misrepresented the course that it would take and failed to put to them at the hearing the critical issue that the Tribunal disbelieved their claim because the particular details about the two men were not provided at the hearing. They claim that, as a consequence, they lost the opportunity of addressing that critical issue and were thereby denied the possibility of a successful outcome.

27 There are two related propositions in the appellants’ contentions. The first is that the Tribunal did not fairly inform the appellants that their claims might be rejected by reason of their inability to provide the particulars of the two men at the hearing. The second is that the Tribunal, having said that it would give consideration to additional information provided by the appellants, ignored that further information. The primary judge dealt with those contentions in some detail.

28 His Honour referred to the following observation made by the Tribunal in the course of the hearing:

His Honour considered that, by a persistent line of questioning about whether there would have been any newspaper coverage of the trial of the two men, the Tribunal made it clear to the appellant father that it considered it implausible that he should be unaware of the identities of the two men or the outcome of the proceedings against them. His Honour concluded that, merely to fail to put to the appellant father, in express terms, the self-evident proposition that it would be hard to accept his claim without any corroborating material did not amount to a denial of procedural fairness. It was put to the appellant father that the claim was ‘difficult to deal with’ in the absence of evidence regarding the court proceeding. His Honour referred to the considerable discussion between the Tribunal and the appellants’ representative as to whether court records might be available to substantiate the claims.

29 That led the primary judge into consideration of the second proposition. After setting out verbatim the transcript of the exchange between the Tribunal and the appellants’ representative, the primary judge said that the Tribunal at no time suggested its concerns would be allayed by the simple provision of two names. Nor did the Tribunal undertake to carry out any particularly broad ranging investigations of its own. His Honour considered that the Tribunal merely put to the appellants’ representative that, given the presumed existence of court records of any conviction, if the proper names of the two men could somehow be ascertained, it should be possible to procure the relevant records from the court in Colombo. His Honour considered that the exchange between the Tribunal and the appellants’ representative did not indicate that the Tribunal contemplated receiving material in the form of the letter of 6 September 2000. Rather, the Tribunal contemplated receiving copies of publicly available court records. Further, his Honour apprehended that the Tribunal undertook to do no more than check against databases the two men’s nicknames as provided at the hearing. His Honour considered that the Tribunal made it clear to the appellants’ representative that what it was seeking was ‘some independent evidence about the conviction of these two gentlemen’, in circumstances where the Tribunal was told it could expect that ‘these two nicknames would have really come up at the trial’.

30 His Honour considered that the second-hand description of two men’s criminal records, with which the Tribunal was eventually provided in the letter of 6 September 2000, in no way:

31 It was submitted to the primary judge that, given that information as to criminal records and as to criminal nicknames, the Tribunal ought to have inquired, through its own resources, and even of the authorities in Colombo, whether the two men described were also known by the nicknames given at the hearing. His Honour rejected that contention on the basis that, if they were the same men as those described in the information subsequently furnished to the Tribunal, those nicknames could be expected to appear in the court or police records of known aliases. His Honour considered that such inference was reasonably open to the Tribunal and the Tribunal was under no obligation to investigate whether there was material in Colombo capable of supplementing the deficiencies in the appellants’ case.

32 His Honour considered that what was clearly put to the appellant father, and understood by him, at the hearing, was the issue that the Tribunal had difficulty accepting that he had taken no subsequent interest in proceedings against these men. That difficulty, it was put to the appellant’s representative, could possibly be overcome if there was any independent evidence going to the conviction and sentence of two men known by the nicknames supplied by the appellant father. His Honour construed the Tribunal’s invitation as one to submit independent information going to the conviction of two men known by the nicknames that the appellant father had given, for the crimes he had described. No such information was forthcoming.

33 In essence, the appellants’ contention is that the Tribunal did no more than simply invite the appellants to supply two names. If that is all the Tribunal had done, his Honour considered there may be some ground for complaint. However, his Honour concluded that the Tribunal asked for much more and did not receive it. His Honour considered that the clear thrust of the Tribunal’s reasons was that the further information provided in the letter of 6 September 2000, including the details provided of criminal records could not be correlated with the oral evidence given by the appellant father.

34 His Honour considered that the Tribunal clearly rejected the information in the letter of 6 September 2000 on grounds that were both broader and more compelling than the simple statement made in the Tribunal’s reasons that ‘given the [appellant father] stated he did not know the names of these men... these results are [not] reliable in any way’. His Honour construed that statement as meaning that nothing contained in the information provided in the letter of 6 September 2000 links it with the rest of the case presented by the appellants at the hearing. Neither the remand dates nor the known aliases corresponded with the claims as presented by the appellants at the hearing. The primary judge found that the Tribunal was right to say that it ‘need not make a finding’ on the records, because, on their face, they were irrelevant. His Honour considered that it should have been evident to the appellants and their representative that simply providing two bare names, without more, would not be sufficient and was not, in fact, what the Tribunal had asked for.

35 There is no error in his Honour’s reasoning and his Honour’s conclusion that the grounds relied on by the appellants were without merit was clearly correct. It follows that there was no jurisdictional error on the part of the Tribunal in making its decision of 30 March 2001.

36 No error has been demonstrated on the part of the primary judge. If any leave is necessary, there would be no utility in granting leave since there is no substance in the claims maintained by the appellants on appeal. Accordingly, to the extent that any leave is required either to make an application for leave to appeal out of time or for leave to appeal, that leave should be refused. Alternatively, if no leave is required, the appeal should be dismissed. The appellants should pay the Minister’s costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Sackville & Emmett.

Counsel for the Applicant:	C Fairfield

Solicitor for the Applicant:	Satchi & Co

Counsel for the Respondent:	R Knowles

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	12 May 2004

Date of Judgment:	14 May 2004

•	misled the appellants into believing that the Tribunal’s concerns about the identity of the two persons named by the appellant father would be satisfied if the appellants were to provide further specific information as to the identity of the two persons;
•	misled the appellants by representing that it would conduct its own inquiries as to the identity of the two men;
•	failed to make any enquiries in circumstances where the appellants provided specific information as requested;
•	failed to communicate to the appellants that it had determinative concerns about a perceived difference between the nicknames provided by the appellant father at the hearing and the aliases subsequently provided in information requested by the Tribunal.

Federal Court of Australia - Full Court Decisions

M152 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 128 (14 May 2004)