VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186 (16 July 2004)

Last Updated: 19 July 2004

FEDERAL COURT OF AUSTRALIA

VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186

MIGRATION – appeal – constitutional writ relief – application out of time for writs of certiorari and mandamus – no time limits for prohibition as primary remedy sought – unnecessary for primary judge to decide whether prohibition is the primary remedy where application for constitutional writ relief doomed to fail – whether orders of primary judge were final or interlocutory – leave to rely on fresh evidence refused




Migration Act 1958 (Cth), ss 417, 198
Federal Court of Australia Act 1976 (Cth), s 27



VUAD of 2003 v Minister for Immigration & Multicultural Affairs [2003] FCA 1331 referred to
Thayananthan v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 referred to
Re Ruddock; Ex parte Reyes [2000] HCA 66, (2000) 75 ALJR 465 referred to










APPLICANT VUAD OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

V1087 OF 2003





GRAY, MOORE & EMMETT JJ
16 JULY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1087 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT VUAD OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT JOHN VRACHNAS IN HIS CAPACITY AS CONSTITUTING THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	GRAY, MOORE & EMMETT JJ
DATE OF ORDER:	16 JULY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. If leave to appeal is required, such leave is refused.

2. If leave to appeal is not required, the appeal is dismissed.

3. The appellant pay the first respondent’s 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	V1087 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT VUAD OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT JOHN VRACHNAS IN HIS CAPACITY AS CONSTITUTING THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	GRAY, MOORE & EMMETT JJ
DATE:	16 JULY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 The appellant is a citizen of India. He arrived in Australia on 11 December 1999 pursuant to a visitor (Class TR) visa, which was valid for one month. On 21 December 1999, he applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 14 March 2000, a delegate of the first respondent, now known as the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 6 April 2000, the appellant lodged an application to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the Minister’s decision. After a hearing before the Tribunal on 13 December 2000, the Tribunal made a decision on 19 December 2000 affirming the decision of the delegate not to grant a protection visa to the appellant. The reasons for that decision were published on 12 January 2001.

2 On 6 August 2001, the appellant commenced a proceeding in the High Court of Australia seeking constitutional writ relief in respect of the decision of the Tribunal. The appellant commenced the proceeding by filing a draft order nisi and an affidavit in support. The draft order nisi claimed orders that the Minister and the Tribunal show cause why writs of mandamus, prohibition and certiorari should not be issued, on the grounds that the Tribunal failed to determine the application before it according to law and that, as a consequence, the decision was beyond the jurisdiction of the Tribunal. In the draft order nisi the appellant asserted that the Tribunal:

• failed to consider the claim by the appellant that, on various occasions, he fled in fear of his life because he had been arrested and beaten by the police and the members of the ruling Bharatiya Janata Party (BJP) in India;
• failed to consider properly, or at all, evidence that the appellant would suffer persecution by reason of his political opinion, real or imputed, at the hands of the Indian police and the members of the ruling BJP in India;
• misconceived the appellant’s testimony and wrongly concluded that he was persecuted in order to obtain his property rather than his political opinion, as envisaged under the Refugee Convention;
• failed to set out reasons for the decision, failed to set out the findings on material questions of fact and failed to refer to the evidence or other material on which the findings of fact were based.

3 On 26 November 2002, Hayne J ordered, by consent, that the further proceedings in the application for constitutional writ relief, including the appellant’s application for enlargement of the times limited by r 17(1) and r 30 of O 55 of the High Court Rules, be remitted to the Federal Court of Australia.

4 Under O 55 r 17 of the High Court Rules, an order nisi for a writ of certiorari must be sought within six months of the date of the judgment or order challenged. Pursuant to O 55 r 30, an application for a writ of mandamus, or an order in the nature of mandamus, must be made within two months of the date of the refusal to hear. However, there is a general power in the High Court, under O 60 r 6, to enlarge time. There is no time limit fixed for the commencement of a proceeding for the grant of an order for prohibition.

5 Under O 51A r 5 of the Federal Court Rules, when the Court or a judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or judge must:

• at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and
• if satisfied that an order absolute should be made, not make the order nisi but proceed directly to make the order absolute.

However, in a particular case, the Court or judge may order that r 5(1) does not apply.

6 On 20 November 2003, a judge of the Federal Court ordered that the proceeding, as remitted, be dismissed with costs. The primary judge concluded that, on the material before him, the appellant had advanced no arguable grounds for the grant of constitutional writ relief and that that was reason enough to refuse to enlarge time: see VUAD of 2003 v Minister for Immigration & Multicultural Affairs [2003] FCA 1331. By notice of appeal dated 8 December 2003, the appellant now appeals to the Full Court of the Federal Court.

THE JUDGMENT OF THE PRIMARY JUDGE

7 The primary judge observed that there had been a period of delay of approximately seven months from the date of notification to the appellant of the Tribunal’s decision to the commencement of the proceeding in the High Court. His Honour observed that, while that period was only one month beyond the period provided for in the High Court Rules regarding certiorari, it was not insubstantial. His Honour then referred to the explanations for the delay proffered by the appellant.

8 One explanation proffered was the appellant’s inability, for financial reasons, to seek judicial review of the Tribunal’s decision in the Federal Court. However, there was no elaboration of the appellant’s financial position, apart from his assertion that he was in difficulty because he was not permitted to undertake employment in Australia.

9 Another explanation for the delay was that the appellant was awaiting the outcome of a request to the Minister, made on 12 February 2001, to exercise his discretion pursuant to s 417 of the Act to make a more favourable decision than that of the Tribunal. The Minister refused that request and the appellant was informed of the decision by letter dated 7 May 2001.

10 The Minister opposed the grant of an enlargement of time in relation to the commencement of the proceeding on the basis that neither the claim of financial difficulty nor the request under s 417 adequately explained the delay that had occurred. The Minister submitted that the appellant’s request under s 417 should be viewed as an indication that he was prepared to accept the Tribunal’s decision as correct and that, rather than challenge that decision by way of judicial review, he had elected to take another course. Having taken the course of making an application under s 417 and awaiting a decision in respect of that application, the appellant must live with the consequences of the delay that occurred as a consequence. As a matter of law, there is no reason why the making of an application to the Minister to exercise discretion under s 417 of the Act should hold up the filing of an application for judicial review.

11 Without expressly ruling on the question of enlargement of time, the primary judge concluded that the proceeding could be disposed of on a more straightforward basis than whether or not an enlargement of time was required, or should be granted. The appellant’s case before the primary judge was that the Tribunal had failed to address an important claim that he had made, that he had been ‘arrested and beaten by the police’. His Honour accepted that it was clear from the Tribunal’s reasons that it did not address any such claim. The question was whether any such claim had in fact been made. His Honour concluded that no such claim had ever been made and that no arguable grounds for relief had been demonstrated.

12 Because the allegations of the appellant were supported by an affidavit sworn by the appellant’s former solicitor, the primary judge adjourned the hearing that had commenced on 14 October 2003 in order that the transcript of the proceeding before the Tribunal could be obtained. His Honour observed that it was only by doing so that he could ascertain whether the appellant’s contention that the Tribunal had failed to deal with his claim was true.

13 Having considered the transcript of the proceeding before the Tribunal, his Honour concluded that it revealed that the appellant’s assertion that he had claimed before the Tribunal that he had been ‘arrested and beaten by the police’ at the behest of the BJP was entirely without foundation. His Honour accepted that the appellant had referred to the police as being unwilling or unable to provide him with protection. However, that was a matter that was considered by the Tribunal. His Honour concluded that the appellant had made no claim whatsoever of being mistreated by the police, in any direct sense, either in his initial application to the Minister for a protection visa, or during the course of the hearing before the Tribunal.

14 His Honour referred specifically to the answers given by the appellant to questions in the form of application for a protection visa and observed that it was plain that the appellant was not, at that stage, alleging that the police had arrested or beaten him. Rather, as his Honour said, the appellant was claiming that he could not count upon the police to protect him from those who, he said, would seek to have him killed.

15 His Honour then observed that, although the word ‘police’ was mentioned twice in the transcript of the hearing before the Tribunal, those references did not go beyond the claims made by the appellant in his initial application. His Honour concluded that it was clear from the documents provided to the Tribunal, and from the transcript of the hearing before it, that the appellant’s contention that his claim that he had been ‘arrested and beaten by the police’, had been ignored, could not be sustained. His Honour concluded that, put simply, the appellant made no such claim.

16 The primary judge concluded that, since the appellant had advanced no arguable grounds for the grant of constitutional writ relief, that was reason enough to refuse the application to enlarge time. Accordingly, his Honour ordered that the application be dismissed with costs.

FRESH EVIDENCE

17 In his written submissions to the Full Court, the appellant sought leave to rely, on the hearing of the appeal, on further evidence in support of his claim to have been arrested and beaten by the police. Specifically, the appellant referred to the following evidence:

• written complaints dated 12 February 1997, 26 June 1997 and 5 September 1997 to the superintendent of police at Kanpur, in the province of Uttar Pradesh, the appellant’s home town, referring to attacks and assaults on the appellant and damage to his office and home property;
• a letter dated 19 February 1997 from a member of the Indian Federal Parliament to the superintendent of police at Kanpur concerning action to be taken;
• a letter dated 17 February 1997 from a Minister of the state of Uttar Pradesh recommending protection of the appellant from attack;
• a letter from a member of the Legislative Assembly of Uttar Pradesh, referring the matter to the district magistrate in Kanpur;
• evidence of the appellant’s admission to, and discharge from, a nursing home by reason of injuries suffered by him;
• newspaper cuttings from the Kanpur Express dated 10 February 1997, the Kanpur Herald dated 23 June 1997 and the Evening Herald dated 5 September 1997, referring to attacks on the appellant by members of the BJP;
• eight photographs showing an attack on the appellant’s house by members of the BJP with sticks and a pistol.

The admission of such further evidence was opposed by the Minister on the ground that there would be no utility in receiving the material.

18 While the Court has power to receive further evidence on appeal, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), a relevant consideration in the exercise of that power, amongst other things, is whether the proffered evidence would be likely to have produced a different result had it been available at the trial.

19 The proposed further evidence was not before the Tribunal. The question before the primary judge was whether there was any jurisdictional error on the part of the Tribunal in failing to consider relevant matters, in failing to consider the appellant’s evidence properly and in misconceiving the appellant’s testimony, in failing to set out reasons for the decision and findings on material questions of fact and in failing to refer to material on which findings of fact were based. The proposed further evidence was clearly irrelevant so far as the primary judge was concerned. If it had been tendered before the primary judge, it would have been inadmissible and should have been rejected. Accordingly, the appellant should not be given leave to rely on the proposed further evidence on the hearing of the appeal.

THE ISSUES IN THE APPEAL

20 The notice of appeal specifies only one ground, namely, that there was an error of law constituting a jurisdictional error. The particulars given are that the primary judge ‘should have decided this matter on whether or not an extension of time should be granted’. The grounds go on to assert that there was no lengthy delay, since it was only one month over the six month limit. The grounds also assert that a writ of prohibition should have issued because it was not necessary, before prohibition could issue, to obtain an extension of time in relation to the claim for certiorari.

21 The ground referred to in the notice of appeal appears to take up an issue considered by the primary judge but not decided by his Honour. The issue was whether, if prohibition was a primary remedy sought, and not merely a remedy ancillary to certiorari or mandamus, the application should not be dismissed because it was out of time for writs of certiorari or mandamus: see Thayananthan v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 at [19]- [27].

22 The Minister contended that prohibition was not an available remedy to restrain the Minister, or any officer within the meaning of the Act, from carrying out the administrative steps that follow automatically under the Act once a visa application is finally determined. Until such time as the decision of the Tribunal is quashed, the Minister is under a duty, in accordance with s 198 of the Act, to remove the appellant, subject, of course, to the expiration of any bridging visa: see Re Ruddock; Ex parte Reyes [2000] HCA 66, (2000) 75 ALJR 465 at [23]- [24] and [27].

23 However, having concluded that there was no substance or merit in the appellant’s claims, the primary judge considered that it was unnecessary for him to resolve the question of whether or not prohibition was a principal remedy. That is to say, even if there was no need for an enlargement of time, or even if an enlargement were necessary and it was granted, the application for constitutional writ relief was doomed to failure, because the grounds relied on were quite without legal merit or substance. That is the basis upon which his Honour appears to have determined the matter. There was no error in his Honour’s reasons for doing so.

THE PROPER ORDERS

24 It is not entirely clear what the primary judge intended by making the order on 20 November 2003 that the ‘application be dismissed’. There was before his Honour the application for enlargement of time, although the argument had been advanced that, because prohibition was a principal remedy, the time limits did not apply. In his reasons, when dealing with that question, the primary judge said at [26]:

‘For reasons that will become apparent, it is unnecessary for me to determine the correctness, or otherwise, of this submission. This case can be decided on a more straightforward basis than whether or not an extension of time is required, or indeed, should be granted.’

25 However, having considered whether or not there was any substance in the appellant’s assertion, that the Tribunal had failed to address his claim that he had been ‘arrested and beaten by the police’, his Honour said at [51]-[52]:

‘It follows from what I have said that the applicant has advanced no arguable grounds of review. That is reason enough to refuse the application to enlarge time.

It also follows that the application should be dismissed. The applicant must pay the Minister’s costs.’

26 There may be some tension between those observations and the earlier observations that his Honour had made. That is to say, having suggested that it was unnecessary to decide whether or not an enlargement of time was required or whether one should be granted, his Honour appears to have concluded that the application to enlarge time should be refused.

27 However, a preferable construction of his Honour’s reasons is that his Honour did not in fact deal with the application for enlargement of time, although his Honour expressed the view that, if he were to, he would refuse it. Rather, his Honour appears to have put his conclusion on the basis that, whether or not an enlargement of time was necessary, the application for constitutional writ relief should be refused because the appellant had advanced no arguable grounds upon which any constitutional writ relief could be ordered.

28 Even then, there may be doubt as to whether the orders of the primary judge were interlocutory, as being refusal of an order nisi, because no arguable case was demonstrated, or final, as being a disposition, after full argument on the merits of the claim for constitutional writ relief. In so far as the filing of the notice of appeal might be taken as an application for leave to appeal, leave should be refused. If, on the proper construction of his Honour’s orders, his Honour dismissed the proceeding on a final basis, the appeal should be dismissed on the merits. It follows that the Full Court should order that the appeal be dismissed and that the appellant pay the Minister’s costs of the proceeding in the Full Court.

29 Dealing with the matter in such a fashion has an unsatisfactory element about it. That is to say, the Court is expressing no final view as to whether the order dismissing the application by the primary judge was a final order or an interlocutory order. However, the issues raised by that question are of some complexity. The appellant appeared without any legal assistance, and the Court, therefore, did not have the benefit of a contradictor. If, perchance, the appellant commenced a fresh proceeding, seeking constitutional writ relief in respect of the Tribunal’s decision of 19 December 2000, it may be necessary for the nature of the orders of 20 November 2003 to be determined conclusively. However, the Minister’s contention before the Full Court is that the order of the primary judge was interlocutory. If a further proceeding were commenced, the appellant would no doubt support that contention, since if the orders were final, any further proceeding may well be barred by the doctrines of res judicata, issue estoppel or Anshun estoppel. The question may therefore be unlikely to arise.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 15 July 2004

The Appellant appeared in person
Counsel for the First Respondent:	Dr S Donaghue
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	14 May 2004
Date of Judgment:	16 July 2004