Applicant M115 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 98 (5 May 2004)

Last Updated: 6 May 2004

FEDERAL COURT OF AUSTRALIA

Applicant M115 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 98

MIGRATION – application for extension of time – application for leave to appeal – protection visa – where no cause of action disclosed – applications dismissed.









Federal Court Rules

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601











APPLICANT M115 OF 2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 1141 OF 2003




BEAUMONT, WEINBERG & CRENNAN JJ
5 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1141 OF 2003

APPLICATION FOR LEAVE TO APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT M115 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, WEINBERG & CRENNAN JJ
DATE OF ORDER:	5 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.	The applications for extension of time and for leave to appeal be refused.

2.	The applicant pay the 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	V 1141 OF 2003

APPLICATION FOR LEAVE TO APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT M115 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BEAUMONT, WEINBERG & CRENNAN JJ
DATE:	5 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an application for leave to appeal, and for an extension of time to appeal, from a judgment of a single Judge of this Court.

2 The applicant, a Sri Lankan national, who arrived in Australia on 2 February 1995 for study purposes, applied for refugee status nearly eleven months after his arrival, when he could no longer afford to study. In his application for a protection visa, he relied on his fears of being persecuted by the Sri Lankan authorities because of his imputed support for the Janatha Vimukthi Peramuna (‘the JVP’) and the Liberation Tigers of Tamil Eelam (‘the LTTE’), that is, claims said to fall under the 1951 Convention relating to the Status of Refugees (‘the Convention’) on grounds of political opinion.

3 The Minister’s delegate refused the applicant’s claim for protection.

4 The applicant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). By its decision dated 27 February 1997, the Tribunal found that it was not satisfied that the applicant was a refugee and affirmed the decision not to grant a protection visa.

THE TRIBUNAL’S REASONS

5 In its reasons, the Tribunal accepted the applicant’s claim that he and his brother were detained in the late 1980’s and early 1990’s for suspected JVP activity, a period when thousands of people were arbitrarily arrested. However, as the country information referred to by the Tribunal indicated, there had been a substantial change of circumstances since that time. Whilst the JVP, or elements of it, were attempting to regroup, it was not now involved in, or capable of, the large-scale, concerted campaign of violence that it engaged in during the late 1980’s: the JVP had been a marginal force since the early 1990’s. But it ‘is not now a militant force. Having regard to this country information and to the fact that the applicant has never been involved in the JVP, [the Tribunal found] that the chance of the applicant being persecuted by the authorities for imputed support of the JVP should he return to Sri Lanka [was] remote’.

6 Because of his relationship with a Tamil woman, whose brother was involved in the LTTE, the applicant also claimed that he would be persecuted because of imputed support for that organisation. The Tribunal accepted that the applicant’s visits to Batticaloa, and his relationship with a Tamil woman whose brother had some association with the LTTE, resulted in the applicant being questioned. However, the applicant stated that after the search of his home in mid-1994, the authorities did not cause him any problems despite regular visits to his home. The applicant obtained a passport and left the country without any difficulty. The delay between obtaining a passport and leaving Sri Lanka suggested that the applicant did not anticipate that he would suffer serious harm if he did not depart hastily. The applicant’s delay in applying for refugee status (until he got into financial difficulties and discontinued his studies), also undermined his claim that he feared persecution on return to Sri Lanka.

7 The applicant also claimed that his father was detained some months after the applicant’s arrival in Australia. But the Tribunal did not accept the truth of this claim: the applicant’s father was Sinhalese, in his sixties and lived in Colombo, a very different profile from that which leads to particular risk of adverse attention from the authorities for suspected LTTE support – that is, young Tamils from the north or east.

8 The applicant’s father had never been involved in any activity that might lead to the authorities taking an adverse interest in him. The detention of the applicant’s father allegedly occurred some months after the applicant had departed from Sri Lanka without any difficulty. According to the applicant, the authorities had not caused him any problems in the period before he left Sri Lanka (other than having questioned him). The applicant did not claim that anything occurred after his departure from Sri Lanka which might have created an adverse interest in him on the part of the authorities. The applicant’s evidence was that he had not seen his Tamil girlfriend or her brother since mid-1994. The applicant did not apply for refugee status until some months after his father’s alleged detention. Having regard to all these matters, the Tribunal held a positive disbelief as to the truth of the applicant’s claim that his father was detained.

9 Accordingly, the Tribunal found that there was no real chance of the applicant being persecuted, by reason of imputed support for the LTTE, should he return to Sri Lanka.

10 The applicant further claimed to fear persecution by virtue of his suspected involvement in the murder of a village chief, his fear resting on his friendship with ‘AA’ (whom he had not seen for some years) and on police statements that they believe that more than one person was responsible for the murder. The applicant did not claim at the Tribunal hearing that he had been questioned by the police in connection with the murder of the village chief, or that they sought to question him about it. In his written material, he claimed that the police had come to his parents’ house a few times saying that they wanted to question him in relation to the murder committed by AA. The Tribunal found that, even if the police had sought to question the applicant about the matter and did so on his return to Sri Lanka, this would be questioning in pursuit of prosecution of a criminal matter, and not persecution for the purposes of the Convention.

PROCEEDINGS IN THE HIGH COURT

11 The applicant was ‘joined in’ the ‘representative proceedings’ decided by the High Court of Australia in August 2002 in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. In Muin and Lie, mandamus was granted against the Tribunal to reconsider the matter in accordance with law (see per Gleeson CJ at [3]). For the purpose of the referred question, there, nothing turned upon the representative nature of the proceedings; and argument was then confined to the cases of Mr Muin and Ms Lie.

12 It appears from the applicant’s affidavit sworn in the proceedings before the High Court on 26 May 2003, that the applicant was ‘given special leave to lodge [his] application in the High Court on or before 31 May 2003’.

13 In that affidavit, the applicant stated:

‘9. For the reasons set out in the draft Order Nisi herein, I believe that the Second Respondent’s decision affirming the decision not to grant me a visa was in error. Now produced and shown to me and marked "WJM-2" is a copy of the said draft Order Nisi and filed herein.

10. I seek the relief set out in the draft Order Nisi filed herein.’

14 No other substantive allegation was made in the affidavit.

15 The draft Order Nisi, prepared by the applicant himself, named the Minister as first respondent; and Mr A H Smith (sitting as the Tribunal) and Mr Adolfo Gentile (as the Tribunal’s Senior Member) as second respondents.

16 Paragraph 1 of the draft Order Nisi applied for an order that:

‘1. The first and second respondents DO SHOW CAUSE WHY A WRIT OF PROHIBITION should not be issued out of this Court directed to the first [sc. second] respondent[ ] prohibiting them from proceeding further with matter No V96/05122 in the Refugee Review Tribunal and WHY A WRIT OF CERTIORARI should not be issued out of this court directed to the [sc. second] respondent[ ] removing into this Court to be quashed the decision made by them on the 27^th day of February 1997 in the said matter and the order made by them on the 27^th day of February in the said matter upon the grounds that ...’

17 The grounds then stated were as follows:

‘1. The decision made by the Second Respondents:

(a) was made without jurisdiction or is affected by an error of jurisdiction;

(b) is affected by an error of law;

(c) is so unreasonable that no reasonable decision maker could have made it;

(d) is based on a finding for which there was no evidence or other material;

(e) takes into account irrelevant considerations

(f) fails to take into account relevant considerations

(g) was an improper exercise of power conferred by the ... Act

(h) was otherwise contrary to law

(i) was made in bad faith

PARTICULARS

(a) In making its decision, the Tribunal failed to observe or breached procedural fairness, in that it has relied upon a number of cables relating to the JVP in Sri Lanka. The Tribunal has relied upon this information without giving the Prosecutor the opportunity to respond to those materials.

(b) Procedural fairness requires that he be given a reasonable opportunity to present a case that he is a refugee as defined in the Convention ... and to answer any material or information in the possession of the Tribunal which suggests otherwise.

2. Further or in the alternative, the Second Respondents

(a) failed to accord the applicant natural justice;

(b) failed to follow the procedures required by the ... Act;

(c) asked the wrong question or misconceived her duty

PARTICULARS

In making its decision the Tribunal failed to observe or breached the rules of natural justice in that it failed to comply with the procedures prescribed by the ... Act and in particular it failed to give to the applicant particulars of information which the Tribunal considered or ought reasonably to have considered as a reason or reasons for affirming the decision under review.’

18 No Order Nisi was granted by the High Court. In lieu, on 26 May 2003, the matter was remitted to this Court.

PRELIMINARY PROCEEDINGS IN THIS COURT

19 On 9 October 2003, this Court ordered by consent that the application for an Order Nisi and the hearing of the return of the Order Nisi, if granted, be conducted as a single hearing. The order also provided that:

‘The applicant file and serve:

(a) a statement of contentions of relevant facts and law setting out:

(i) particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought; and
(ii) if the applicant requires an extension of time in which to file this application, the reasons why an extension of time should be granted; and

...

(b) any affidavits which the applicant intends to rely on at the hearing.’

20 On 5 November 2003, the applicant filed a document entitled ‘contentions of law’. He did not file any affidavit material. In his contentions the applicant contended that the Tribunal failed to accord him procedural fairness by relying upon ‘a number of cables relating to the JVP in Sri Lanka ... without giving [the applicant] the opportunity to respond to those materials.’ Restating the point by an alternative formulation, the applicant submitted that the Tribunal:

‘... failed to give [him] particulars of information which the Tribunal considered or ought reasonably to have considered as a reason or reasons for affirming the decision under review.’

21 At paragraph 13 of the applicant’s contentions, the applicant said:

‘I do require an extension of time in which to file this application, as it would not be fair if I was stopped from making my arguments ...’

22 By motion dated 26 November 2003, the respondents sought an order that the application be dismissed under O 20 r 2 of the rules of Court as disclosing no reasonable basis.

THE DECISION OF THE PRIMARY JUDGE

23 His Honour said ([2003] FCA 1448 at [9] – [12]):

‘The first question which arises under O 20 r 2 is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to file his application [for prohibition]. I consider that it would be futile to grant the relief claimed against the first respondent. As Gray J said, in respect of a materially identical plea for relief in Re Batuwantudawa [2003] FCA 684 at [14]:

"...the claim in the draft order nisi for prohibition is limited to the matter designated by its proceeding number in the Tribunal. The Tribunal has completed its dealing with that proceeding. There is nothing left to prohibit."
The next question which arises is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to apply for certiorari. In that context it may be observed, as Gray J did in Batuwantudawa at [7], that no request is made for mandamus which might result in the redetermination of the application in the [Tribunal].

At [8] in Batuwantudawa Gray J said:

"The time limited by the rules of the High Court for an application for certiorari is fixed by O 55 r 17 of those rules. An application must be made not later than six months after the date of the decision concerned. Of course, that is subject to the general power in O 60 r 6 of the High Court Rules to enlarge any of the time appointed by the rules. It falls to this Court to exercise that power of enlargement, if it is to be exercised, as a result of the remittal of the proceeding to this Court."

In order to consider the request for dismissal under O 20 r 2 it would ordinarily be necessary to examine the reasons of the [Tribunal] to observe whether the alleged denial of procedural fairness may arguably be established. If that ground is arguably established it would ordinarily be in the interests of justice to extend time.’

24 Having analysed the Tribunal’s reasons, the Judge said (at [18] – [21]):

‘There is no indication in the reasons of the [Tribunal] that it gave the applicant an opportunity to comment on the country information before it made its decision. However, in the absence of any affidavit material from the applicant it is impossible to know whether it would have made any difference to his case if he had received prior notice of the country information referred to by the [Tribunal].

As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at  [37]:

"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

In Lam, the Chief Justice said at [38]:

"No practical injustice has been shown. The applicant lost no opportunity to advance his case. ... It has not been shown that there was procedural unfairness."

See also per McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149].

Similarly in this case the applicant has not shown what he would have said if the [Tribunal] had given him the country information to comment upon, assuming (without knowing) that it did fail to do so. The applicant said, in his oral submission today, that he is currently unable to get information from Sri Lanka. That is not the point. The issue is what he would have said to the [Tribunal] prior to its decision being given in 1997 or what he would have done if he had been shown the relevant country information before the [Tribunal’s] decision.’

25 Accordingly, on 8 December 2003, the Judge dismissed (ex tempore) the application ‘as disclosing no cause of action’.

THE GROUNDS STATED IN THE APPLICANT’S NOTICE OF APPEAL

26 On 18 December 2003, the applicant purported to file a notice of appeal from the primary Judge’s judgment, stating the following grounds of appeal:

‘The grounds on which the Appellant seeks orders under section 39 B of the Judiciary Act, in relation to the decision are as follows:

A. There was an error of law in the Court’s decision constituting a jurisdictional error.

PARTICULARS

I disagree with the decision of the Federal Court. I will provide further particulars when I am provided with a copy of the decision of the Federal Court.

B. There was a procedural error in the Court’s decision constituting an absence of natural justice which was also a jurisdictional error.’

THE RESPONDENT MINISTER’S OBJECTION TO COMPETENCY

27 On 16 January 2004, the Minister objected to the jurisdiction of this Court to hear this appeal on the grounds that the judgment is an interlocutory judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), and an appeal cannot be brought from a judgment of the Court constituted by a single Judge that is an interlocutory judgment unless the Court or a Judge gives leave to appeal; and no such leave has been sought or obtained.

ORDERS MADE BY THE CHIEF JUSTICE ON 10 FEBRUARY 2004

28 On 10 February 2004, the Chief Justice made the following orders in this matter:

‘THE COURT ORDERS THAT:

1. Any application for leave to appeal and for an extension of time be made no later than 27 February 2004.

THE COURT NOTES THAT:

2. The grounds of appeal in this matter are not stated as required by Order 52 Rule 13 (2)(b) of the Federal Court Rules. That provision of the Rules requires that the notice of appeal shall state "briefly, but specifically, the grounds relied upon in support of the appeal."

THE COURT ORDERS THAT:

3. The appellant file and serve an amended notice of appeal setting out the grounds of appeal and particulars of those grounds in accordance with the requirements in Order 52 Rule 13 of the Federal Court Rules by 27 February 2004. Any failure to comply with such a direction may result in the appeal being dismissed pursuant to s 25 (2B)(bb) of the Federal Court Act 1975 (Cth).

4. No later than fourteen (14) days before the date fixed for the hearing of this matter, the appellant file with the Court a brief outline of the submissions he wishes to make in support of his case. The outline is to be in writing in the English language and is not to exceed five (5) pages in length. The outline is also to be served on the respondent. If the appellant wishes to rely on any cases, he must also file with the Court and serve on the respondent a list of those cases.

5. No later than seven (7) days before the date fixed for the hearing of this matter, the respondent file and serve an outline of submissions in writing. The outline is not to exceed five (5) pages in length. The respondent to file and serve a list of authorities with the submissions.’

THE APPLICANT’S LETTER TO THE COURT DATED 23 FEBRUARY 2004

29 It appears that the applicant has not complied with the Chief Justice’s orders. However, by letter to the Court dated 23 February 2004, the applicant stated:

‘I’m writing in regarding [sic] to the recent decision you made in relation to my application for the permanent resident visa to remain in Australia.
I made my initial application in 1995 when the situation was volatile and there were serious threats to my life in Sri Lanka. For the past 9 years I have been living in Australia abiding it’s laws and values and during that period I have lost most of my contacts with my friends and relatives in Sri Lanka and I have made Australia my home and intended to obtain a visa to remain permanently in Australia.

I also like to express, in 27^th February 1997 the decision made by the "Refugee Review Tribunal" in relation to my application for protective visa was unfair. My lack of knowledge and experience at that time might have force[d] the Tribunal to ma[k]e it’s decision to reject my application after giving evidence at an interview through a Sinhalese interpreter present [at the] interview.

I can only plead you to allow me to appeal to the "Refugee Review Tribunal" so I can better explain my situation and hoping to get a favourable decision.

Since my arrival in Australia all my family members have migrated to Australia and New Zealand including my parents and I have no close contacts with Sri Lanka.

[I] hope you will consider my situation and allow me to appeal to the "RRT" once more.’

CONCLUSIONS ON THE APPLICATIONS FOR LEAVE TO APPEAL AND FOR EXTENSION OF TIME

30 Apart from his letter dated 23 February 2004, the applicant has provided the Court with no material to justify the grant of his applications, and has not appeared before us today. In our view, for the reasons given by the respondent in his outline of submissions dated 30 April 2004 (pp 3 – 5), the applications should be refused, with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Weinberg and Crennan.

Associate:
Dated: 5 May 2004

Solicitor for the Applicant:	No appearance by the applicant
Counsel for the Respondent:	Mr C Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 May 2004
Date of Judgment:	5 May 2004