Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59 (18 May 2006)

Last Updated: 27 August 2007

FEDERAL COURT OF AUSTRALIA

Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59

PRACTICE & PROCEDURE – history of litigation in the Refugee Review Tribunal, Federal Court and High Court involving husband wife and two sons as applicants for refugee status – earlier segments of litigation favourable to appellants – ultimate proceedings in Federal Court at first instance pursued unsuccessfully by present appellants – objection to competency of ultimate application for leave to review or appeal from Federal Court decision at first instance – issues raised on ultimate application for leave to appeal addressed in any event – all issues resolved in favour of Minister


Federal Court of Australia Act 1976 (Cth), ss 23, 24(1AAA), 25(2B), s 25(2)
Migration Act 1958 (Cth) s 417


Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150; (2004) 206 ALR 461 discussed
BZAC v Refugee Review Tribunal [2005] FCA 675 applied
Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 (2003) 79 ALD 715 discussed
NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297; (2003) 134 FCR 377 cited
NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 63 discussed
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 cited and distinguished







APPLICANTS 325/2002 v REFUGEE REVIEW TRIBUNAL AND COMMONWEALTH OF AUSTRALIA

NSD 313 OF 2005



MOORE, NICHOLSON AND CONTI JJ
18 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 313 OF 2005

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

BETWEEN:	APPLICANTS 325/2002 APPELLANTS
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGE:	MOORE, NICHOLSON AND CONTI JJ
DATE OF ORDER:	18 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal to the extent required or any appeal otherwise validly on foot be dismissed.

2. The applicants for leave to appeal, or otherwise the appellants, pay the respondents’ costs of the application for leave to appeal or of the appeal (as the case may be).

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD313 OF 2005

BETWEEN:	APPLICANTS S325 of 2002 APPLICANTS
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

JUDGES:	MOORE, NICHOLSON AND CONTI JJ
DATE:	18 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MOORE J

1 I have had the advantage of reading the reasons for judgment of Conti J in a draft form. Subject to the following observations, I generally agree with his Honour's reasons for rejecting each of the proposed grounds of appeal and refusing leave to appeal from both the suppression orders and the order refusing an order nisi. The issue of whether a single judge has power to dismiss an appeal as incompetent no longer arises because the purported appeal has now been dealt with by this Full Court.

2 The primary judge ultimately dismissed the application for an order nisi on the basis that it would be an erroneous exercise of the Court's discretion to make an order that the respondent show cause. It might be possible to argue that unless the applicants were estopped from pursuing an arguable ground, there was no basis for a judge exercising a discretion to prevent the pursuit of that ground: see Miller v the University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147. However, in my opinion, the only arguable ground identified by the applicants concerned the alleged failure of the Refugee Review Tribunal ('the Tribunal') to draw the applicants’ attention to the withdrawal of support by one individual, and arguably, also by a second individual. That withdrawal of support was achieved by a telephone call from the first individual, and arguably, a letter from the second. That argument is based on a denial of procedural fairness, some support for which, as a matter of legal principle, is found in the recent judgment of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72.

3 However, on 29 November 2001, the High Court (constituted by Gleeson CJ and McHugh and Gummow JJ) dismissed an application by the applicants for constitutional writs, reasons for which were only published in transcript. One of the grounds advanced by the applicants had been that the Tribunal had denied the applicant’s procedural fairness since the Tribunal had been aware of documents concerning matters adverse to the applicants, either as to the substance of the case or as to their credibility, but did not disclose those documents to the applicant. One of the documents seen by the members of the High Court and on which their judgment was based, was the letter that may have been written by one of the people whose support had arguably been withdrawn.

4 The High Court's judgment clearly raises an issue estoppel, probably in relation to both the phone contact with the Tribunal and the written communication from former supporters to the Tribunal. It may be that, having regard to the way the ground was formulated (by reference to documents and not telephone communication), there was no issue estoppel in relation to the phone contact. However, even if this was so, an Anshun estoppel would arise, since the telephone communication was plainly a matter that could have been pleaded: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. Therefore, in my opinion, there would be no discretionary basis for not refusing relief.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 18 May 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 313 OF 2005

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

BETWEEN:	APPLICANTS 325/2002 APPELLANTS
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

JUDGES:	MOORE, NICHOLSON and CONTI JJ
DATE:	18 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

NICHOLSON J:

5 I am in agreement with the reasons for judgment of Conti J and the orders proposed.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:


Dated: 18 May 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 313 OF 2005

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

BETWEEN:	APPLICANTS 325/2002 APPELLANTS
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

JUDGE:	MOORE, NICHOLSON AND CONTI JJ
DATE:	18 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

CONTI J:

Context to the appeal including history of prior proceedings

6 The applicants for leave to appeal (to the extent that leave be necessary) comprise a husband and wife (whether de jure or de facto is seemingly unclear from the evidence, each of them having a different surname) and a son (born 1990). Whether leave be necessary in the events which happened, need not ultimately be resolved, for reasons which will become apparent. For convenience I will refer to them as appellants. The husband and wife are referred in the proceedings by different surnames. The appellants are nationals of Romania. At least by the time of the arrival of all three appellants in Australia in March 1995, the husband and wife were not married, though they had been living together from about 1989. All three family members have continued to reside together in Australia since their arrival here, having lived in the Richmond locality of New South Wales, where the son has been educated and the husband has been engaged in employment. A daughter was born to their union in June 1996, but she is not a party to the proceedings. The husband’s son (born 1981) from a prior relationship was originally included in the family’s protection application as a dependent, however he was not a party to the present proceedings, as he had purportedly been granted Australian citizenship.

7 On 17 March 1995, each made application for a protection visa from the then Department of Immigration and Multicultural Affairs. On 20 June 1996, the Minister’s delegate refused their respective applications, and on 19 July 1996, the appellants sought the review of that decision by the Refugee Review Tribunal. That application for review was rejected by the Tribunal on 21 December 1998. Since that time the appellants have engaged in protracted litigation against the Minister, for some time with the assistance of legal representation, though not in the current proceedings. Certain of those legal engagements in the Court at first instance and on appeal were successful. In or about May 1991, after departing from Romania, the appellants sought initially to settle in Belgium with their respective sons in a district close to the border of Belgium with France. The circumstances in which they came to leave Belgium, in the Tribunal’s view, were controversial, but the Tribunal accepted that at the time of their departure in Belgium for Argentina in December 1994 (before proceeding to Australia), there was evidence to the effect of the husband and wife both having been severely burned whilst in Belgium, in the context of a serious incident. It appears incidentally that the status of political refugee does not exist in Argentina and therefore, it was not possible for the appellants to apply for refugee status in that country.

8 The basis for the Tribunal’s decision of 21 December 1998, which in the events which happened, was made in the context of the first of two Tribunal hearings involving the appellants, was that it was not satisfied that any of the appellants were persons to whom Australia owed protection obligations under the Refugees Convention, as amended by the Refugees Protocol. The Tribunal’s conclusion was expressed in the following terms:

‘In summary, I find that [the husband] did have a minor role in the former Securitate. He was one of hundreds of thousands of such people in Romania during the Ceaucescu era. That era has gone and Romania has undergone substantial change during the applicants’ absence.

The Securitate, has been replaced by a new body and, while many lower level former Securitate personnel have been integrated into the new body the organisation is under the scrutiny of a parliamentary body in a government which has been elected into power by the people.

The evidence before me leads me to find that [the husband] would not face a "real chance" of persecution by the various organs of the government of Romania.

Neither, according to the independent evidence, would he face a "real chance" of persecution at the hands of former members of the Securitate.

This being the case, as [the wife’s] claims rely on her husband’s profile, any fears he or [the wife] may hold in this regard are not well-founded and they cannot be found to be refugees.

No specific Convention claims were made by or on behalf of the applicants’ children and there is no basis on which the Tribunal can be satisfied that they are refugees. The fate of their applications therefore depends on the outcome of the applicants’ application. As the Tribunal has found that the applicants do not satisfy the criteria for a protection visa, it follows that their children cannot be granted protection visas.’

The above reference to Securitate is to what the Tribunal described as the Romanian secret security organisation of that time. The Tribunal did accept that the appellants had a subjective fear of persecution if they were returned to their country of nationality, being of course Romania. An insuperable difficulty for the appellants, in the view of the Tribunal, was seemingly the objective evidence of country information addressed by the Tribunal, which led in turn to rejection of the appellants’ reasons for leaving Romania. Irrespective of the circumstances in which the appellants claimed to have left Romania, the implications of the initial Tribunal findings were that they were at least dissentients in the context of the fall of the Colonel Cernescu regime.

9 Nevertheless on 24 August 1999, Tamberlin J of this Court granted the application of the husband, the wife and the two sons for review of the Tribunal’s decision, which in the events which happened, and which I have foreshadowed, turned out to be the Tribunal’s first decision concerning the appellants. The basis for his Honour’s ruling was that the course adopted by the Tribunal, by way of that delayed decision-making of more than two years, was ‘quite inappropriate’, albeit undertaken thoroughly with a view to ascertaining the existence or otherwise of material favourable or otherwise to the appellants. In that regard, the Tribunal member gave the following explanation (at pp 29–30) for the delay in its initial decision-making:

‘After the Tribunal hearing I considered the deteriorating situations in countries bordering on Romania and, in hindsight, took the unnecessary precaution with a view to provide the most favourable consideration to the Applicants to monitor the situation to see if the situation in the neighbouring countries of former Yugoslavia and the former USSR would have any influence on Romania such that the positive changes were threatened. This did not happen and Romania’s slow but consistent moves away from the Romania of 1989 lead me to conclude that the changes in the last seven years have been substantial and positive.

As there have been substantial and sustained improvements in Romania since the Applicants’ departure, many of the causes for their past grievances have been effectively removed. While more progress needs to be made to eradicate fundamental human right abuses of Roma, in particular, and other groups there is no evidence that people in the Applicants’ situation face any "real chance" of persecution for the former role of [the husband] in the Securitate.’

The foregoing reference to ‘many of the causes for their past grievances since the Applicants’ departure’ is not without significance to at least an extent of credibility of the appellants’ initial Tribunal proceedings, though of course those claims fell to be balanced against other objective country information.

10 The Minister appealed to a Full Court comprising Spender, Madgwick and Emmett JJ, being an appeal against Tamberlin J’s orders that the matter be remitted to the Tribunal for further consideration in accordance with law and on 9 August 2000, the Minister’s appeal was dismissed. The concluding joint reasons for judgment of the Full Court (at pp 8–9) were as follows:

‘The reasons of the Tribunal do not indicate one way or the other whether the Tribunal had formed a view as at 4 July 1997 as to whether there was a real chance of persecution of the respondents if they returned to Romania. If, on the material then before it, the Tribunal had formed the view that there was no real chance of persecution, then there was no warrant for the delay for the purposes of "monitoring the situation". The fact that the Tribunal considered that it was desirable to do so, however, rather suggests that the Tribunal had some residual doubt. The reasons ultimately published indicate that that doubt was dissipated by something. The reasons do not state what it was that the Tribunal took account of in that regard.

In the circumstances, the preferable construction to be given to the paragraph is that the Tribunal did entertain some residual doubt as to whether or not there was not a real chance that the respondents may be at risk of persecution for a Convention reason. Accordingly, it follows that the Tribunal’s reasons do not refer to the evidence or other material on which at least part of the findings of fact were based. Therefore the Tribunal failed to comply with the requirements of section 430(1) in relation to its decision of 21 December 1998. A ground within s 476(1)(a) was therefore established. The appeal should be dismissed with costs.’

11 A Tribunal hearing was re-assembled before another Tribunal member for further decision-making and on 11 May 2001, a further Tribunal decision was handed down (though bearing the date 26 April 2001) whereby the delegate’s decision not to grant protection visas was affirmed. Before reaching that decision, the Tribunal observed that ‘[t]his case has a long and somewhat troubling history’, and the member traced the history of adjourned and postponed hearings, and diagnoses of ‘major depression’ in relation to each of the husband and wife appellants evidenced by a substantial series of medical reports, and the circumstance that the appellants were ‘suffering hardship’, as well as ‘depression due to long term family, social, financial and immigration problems’. The member referred to the further circumstances that the applicant husband/father came from a well connected family in Romania and received a university education. However the extent of his testified association with the Securitate in Romania were not wholly and sufficiently accepted by the Tribunal. In any event, the applicants had earlier ceased to live in Romania and for some time thereafter (that is from May 1991 to December 1994) lived in Belgium, where they had sought unsuccessfully refugee status. It was accepted by the Tribunal that both the husband and wife suffered burns in a serious incident whilst living in Belgium, though there was an absence of ‘information about Romanian involvement in the fire’ advanced to the Tribunal. The findings of the Tribunal, being adverse to the appellants, concluded as follows:

‘Hence I am not satisfied that [the husband] was ever threatened by agents who worked for Securitate or for SRI. It follows that the chance that [the husband] will be harmed in the reasonably foreseeable future by agents who work or worked in Securitate or the SRI is remote. Again, the remoteness of this chance is enhanced by the new openness and public knowledge regarding Securitate affairs.

Even if, contrary to my findings, the claimed incidents of 1990 did take place, on the basis of the country information already discussed above, I am not satisfied that those incidents now give rise to a well-founded fear of persecution from the Securitate or its successors.

On all of the evidence before me, I am satisfied that there is no real chance that [the husband] will suffer harm, let alone harm amounting to persecution, for reason of his connection with Securitate from 1980-1989 or with a subsequent security organisation after 1990. Equally, I am satisfied that there is no real chance that [the wife] will suffer any harm for reason of her association with [the husband] from 1989 onwards.

I am satisfied that neither [the husband] nor [the wife] suffered harm, let alone harm amounting to persecution, for a Convention reason in the past. I am also satisfied that the chance of such harm befalling them in the reasonably foreseeable future is remote. It follows that I am not satisfied that either [the husband] or [the wife] have a well-founded fear of persecution for a Convention reason. They are not refugees.’

The above references to ‘SRI’ are to a successor organisation to or a re-organisation of the Securitate.

12 On 7 June 2001, the appellants applied to the Federal Court for review of the Tribunal’s findings of 11 May 2001. By that time the appellants had been present in Australia for about six years, and public life in Romania may well have not been standing still, in line with modern European experience. For reasons that do not appear in the so-called Application/Appeal Papers, those proceedings were discontinued by consent, and the appellants made application to the High Court of Australia on 18 September 2001 for prerogative relief. Thereafter on 30 October 2001, the appellants filed an amended draft order nisi for writs of certiorari, prohibition and mandamus in the High Court in respect of the second decision of the Tribunal. The hearing of that further application was dismissed by the High Court on 29 November 2001. No criticism was made by the High Court of the Tribunal’s conduct of the appellants’ review application; on the contrary reference was made to the Tribunal member’s ‘courtesy and constraint’. Orders were made nevertheless as to non-disclosure inter alia of the appellants’ names, and as to their time of arrival in Australia and also as to confidentiality of certain exhibits.

13 The appellants brought further proceedings in the High Court on 16 September 2002 in relation to the Tribunal’s said decision handed down on 11 May 2001. Those proceedings came before a single justice of the High Court (Gummow J) on 26 August 2003, who remitted the same to the Federal Court for hearing. Accordingly his Honour did not determine the request of the appellants for an order that the Minister show cause, or the Minister’s counter application for summary dismissal.

14 The statement of claim filed by the appellants in the High Court, in the context of those second proceedings brought in the High Court commenced on 16 September 2002, originally contained two grounds, respectively identified as ‘Ground A’ and ‘Ground B’. Each ground bore adjacent to those respective headings the words ‘Re: Procedural Fairness’. As to Ground A, the essence of the complaint made was an alleged failure of the Tribunal to obtain a correct translation into the English language of a letter submitted by the wife to the Tribunal on 1 March 1996. The translation obtained was asserted to be incorrect in material aspects, and in any event it was said that page 7 of the letter had gone ‘missing from the file’. As to Ground B, the essence of the complaint made was that certain media material which had been taken into account by the Tribunal, was not brought to the appellants’ attention or otherwise provided to the appellants.

15 Later on 18 February 2004, the appellants sought to add so-called ‘Ground C’ and ‘Ground D’ to the appellants’ statement of claim. The essence of the complaint the subject of those grounds for review was that, first, certain information contained in letters of 3 and 4 June 1997, written by St Monica’s Primary School and provided by the appellants to the Tribunal for its consideration, would no longer form part of the information to be considered by it, with the consequence that the appellants were not given the opportunity to remedy the deficiency thereby arising in its information before the Tribunal and, secondly, that no adequate opportunity was afforded to the appellants to meet a case of the Commonwealth presented to the Tribunal that their evidence of certain events, including their abduction in August 1990 and advice to leave Romania, was false and contrived. The reference to that school was to a Catholic Church school attended by the appellant’s sons located in the Richmond locality where the appellants were residing, and from where at least the husband appears to have been gainfully employed.

16 Upon the remission of the proceedings to the Federal Court, and the same being allocated to the docket of Wilcox J, the Minister pressed for the dismissal of the proceedings. On 11 February 2005, his Honour held that there was no viable basis for the prerogative relief sought by the appellants. His Honour postulated two reasons in particular for so holding. The first was that although the Tribunal made no reference in its reasons to the two character references (i.e. of St Monica’s Primary School) concerning the appellants, his Honour considering that to infer that the withdrawal of support contained in one of the letters led to the Tribunal finding that the appellants did not harbour a genuine fear as to the outcome of their return to Romania boiled down to ‘a high degree of speculation’. The second related to the Tribunal’s withholding from notification to the appellants of doubts held concerning the truth of two claims which had been propounded to the Tribunal, his Honour pointing out that the Tribunal nevertheless expressed its lack of satisfaction as to certain incidents complained of by the appellants being any longer likely to give rise to ‘... a well-founded fear of persecution from the Securitate or its successors’. His Honour concluded his reasons for judgment as follows:

‘This is a case in which a person has previously unsuccessfully challenged the impugned decision. That challenge has been dealt with at the highest level and failed. With the exercise of some ingenuity, further points have been devised in order to renew the challenge. Having regard to the history of the matters, it would be an erroneous exercise of the Court’s discretion to make an order that the respondent show cause’.

17 Subsequently on 14 February 2005, Wilcox J made suppression orders restrictive of access to the Departmental file concerning the appellants, and as to disclosure of the identity of the appellants and thus for the protection of the appellants, in the following terms:

‘1. Access to the file in this matter is not to be granted except with the leave of a judge;

2. The identity of the Applicants as the applicants in this proceeding may be disclosed:

(a) to the Judges and officers of any Australian Court;

(b) to the parties and their legal representatives;

(c) to officers of the Department of Immigration and Multicultural and Indigenous Affairs;

(d) to members and officers of the Refugee Review Tribunal; and

(e) as permitted or directed or ordered by a Judge of an Australian Court;

but not otherwise unless the disclosure is made by one of the Applicants, or the Applicants consent in writing to the disclosure.’

18 By an amended notice of appeal from the decision of Wilcox J filed on 17 June 2005, the following grounds of appeal were propounded:

‘1. His Honour Wilcox J erred in finding that there was no case for the respondent to show cause as to why an order absolut should not be granted.

2. His Honour Wilcox J erred in that he did not consider the Applicants’ grounds A and B.

3. His Honour Wilcox J erred in finding that the Applicants’ grounds C and D did not have the qualification to attract an entitlement to review of the Refugee Review Tribunal decision after being previously reviewed by the High Court of Australia.

4. The suppression orders his Honour Wilcox J made on or about 14 February 2005 are in breach of the Section 91X of the Migration Act 1958 and in direct conflict with the High Court suppression order in matter S196/2001 that was made on 29 November 2001 and as amended on 4 February 2005.’

I have already made reference of course to the essence or subject matter of those respective Grounds A and B. The context of Grounds C and D will later be explained.

19 The Full Court was presented with extensive written submissions from the appellants, which the Minister addressed in turn by written submissions. It is I think correct to say that at the hearing in the Full Court, neither party added materially in oral address to their respective written submissions. The appellants were not legally represented at the hearing of their appeal to the present Full Court. The wife appeared in person with her husband in the Full Court, but she alone orally addressed the Full Court. Her oral submissions to the Full Court extended over some thirty pages of transcript. Although her oral address was presented in remarkably articulate terms, she understandably lacked an entire comprehension of the legal implications of the issues the subject of the proceedings conducted before Wilcox J as primary judge, and of the parameters of relevance governing what could be legitimately propounded in the context of an appeal.

Issues raised by the appellants on the appeal

20 The appellants provided in the first place, as I have foreshadowed, extensive written submissions, the first bearing the date 27 May 2005 and consisting of eleven (11) pages, divided into four segments, the major segment being headed ‘Grounds for application for leave to appeal’. Subsequently on 6 June 2005, Hely J ordered that ‘[t]he appellants be granted leave to file an application for an extension of time within which to seek leave to appeal and an application for leave to appeal by Tuesday 14 June 2005’. The previous written submissions for the appellant’s were seemingly overtaken at least largely by a document headed ‘Appellants’ outline of submissions’ signed by the wife and bearing date 2 November 2005.

21 In response, the Commonwealth filed on 7 November 2005 ‘Second Respondent’s outline of submissions’ consisting of ten pages accompanied by an eight page chronology, to which the appellants filed ‘Appellants’ reply submissions’ bearing date 23 November 2005. Understandably the Court’s task of describing with entire precision what issues were sought to be raised by the appellants on the appeal became a complex task.

22 A convenient starting point, for the purposes of addressing the issues purportedly raised on the appeal, is to describe below the five issues distilled in the Minister’s outline of submissions in response filed on 7 November 2005:

(i) Does a single judge have power to dismiss a notice of appeal as incompetent?

(ii) Were the orders made by Wilcox J on 11 February 2005 and 14 February 2005 interlocutory, such that leave to appeal was required?

(iii) If leave was required, should there be an extension of time within which to seek leave to appeal?

(iv) Should leave to appeal be granted?

(v) If leave is granted or not required, should the appeal be allowed?

Each of those issues are separately addressed below. The complexity of the context within which the present purported appeal arises requires as a practical matter the pursuit of that course.

Does a single judge have power to dismiss a notice of appeal as incompetent?

23 The Minister contended to the affirmative of that proposition, citing in support thereof BZAC v Refugee Review Tribunal [2005] FCA 675, being a decision of Spender J presiding as a single judge made on an appeal from another judge of this Court. His Honour articulated the following precept:

‘In my judgment, when an appeal is manifestly incompetent, having regard to the provisions of s 24(1AAA) of the Act, it is competent for a single judge of this Court (by which is meant a judge of this Court sitting alone) pursuant to s 23 of the Act, to make orders to that effect.’

Those ss 23 and 24(1AAA), being of course of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’), read respectively as follows:

‘23. The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

24. ...

(1AAA) An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court.’

It is ultimately the decision of Wilcox J as a single judge of this Court which falls to be addressed by the present appeal, being a decision, as I have earlier explained, which involved the review of a decision of the Refugee Review Tribunal, and not a decision of a federal magistrate.

24 Earlier in NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 63, having acknowledged that a certain purported appeal was not competent, Hely J was not persuaded that he had power to deal with the issue sought to be propounded, and his Honour referred the matter to a Full Court which, so Spender J recorded in BZAC, dismissed that appeal as incompetent without considering the question whether a single judge was authorised to dismiss an incompetent appeal. In that context moreover, Spender J referred next to the ancillary powers conferred on a single judge, as well as those conferred on a Full Court, by s 25(2B) of the FCA Act, and pointed out that neither in s 25(2B), nor in s 25(2) of the same legislation, is there an express conferral of power upon a single judge to dismiss an incompetent appeal. Nevertheless, Spender J reached the conclusion which I have outlined or summarised above. It follows from the opinion of Spender J, as a single justice of the Federal Court in BZAC, with which I would respectfully agree, that the first issue arising on the appeal be resolved in principle in the affirmative.

Were the orders made by Wilcox J on 11 February 2005 and 14 February 2005 interlocutory, such that leave to appeal was required?

25 As to this second issue arising, the orders made by Wilcox J on 11 February 2005 related to the refusal of orders nisi, the dismissal of the proceedings, and consequential orders for costs, each of course resolved adversely to the appellants. The Commonwealth submitted that it was clear, both from the reasons for judgment of Wilcox J and the transcript of the proceedings before Wilcox J, that his Honour did not consider, nor purported to consider, any arguments of the appellants on a final basis, but only arguments in a context of proceedings by way of application for an order nisi, being a course so undertaken without opposition from the appellants. The Commonwealth next submitted that the refusal of an application for an order nisi is ‘unambiguously an interlocutory order’, since an order for dismissal of such proceedings could not be construed as a final order. The Commonwealth also contended that the orders made by Wilcox J on 14 February 2005, designed to suppress the publication of material that would identify the appellants, were similarly of an interlocutory nature. It followed, so the Commonwealth submitted, that leave to appeal against those orders of his Honour of 11 February 2005 and 14 February 2005 was required to have been first obtained by the appellants, in my opinion an inevitably correct proposition, though in the events which happened, the appellants’ presented their case as though on an appeal, and hence for convenience I have referred to them throughout as appellants, rather than applicants. Accordingly, this second issue should be resolved in the affirmative, though only in an academic sense, since both parties addressed all issues tendered for argument and resolution by the appellants, and I propose to engage the same accordingly.

26 I should add, in that context of adjectival discussion, that I was referred, by way of asserted exemplification of the present circumstances, to those involved in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297; (2003) 134 FCR 377, and in my opinion correctly so. The Commonwealth additionally pointed out that it may be that the Federal Court may make final orders on the remittal from the High Court of an application for orders nisi in conformity with the operation of Order 51A Rule 5 (Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150; (2004) 206 ALR 461), but that so much was not the case where, as here, the Court had relied upon Order 51A Rule 5(2) to demonstrate that it was considering the matter only on the basis as to whether there was cause for the making of orders nisi. I was referred, in that latter context, to the reasons for judgment below of Wilcox J of 11 February 2005 at [7]-[8]. It follows, as I have foreshadowed, that leave to appeal from his Honour’s orders of 11 February 2005 and 14 February 2005 was strictly speaking required by the appellants, which was not of course at least formally sought, much less obtained. However, as I have earlier indicated the issue is largely academic, in the sense that its resolution has been somewhat overtaken by the scope of the appellants’ submissions advanced on the predication of an appeal as of right.

Should leave be required, should there be an extension of time within which the appellants be allowed to seek leave to appeal

27 As to the third issue arising, the Commonwealth submitted that the relevant considerations involved were first, whether there was a likelihood of leave to appeal being granted, and secondly, whether the appellants had provided satisfactory reasons explanatory of the delay in seeking such leave. As to that second or latter consideration, the Commonwealth stated that it did not contend that there was any unexplained delay, and hence did not place reliance upon any such factor. In relation to the former consideration, the Commonwealth contended that any such likelihood or otherwise rested upon the outcome of the resolution of the fourth issue, which therefore I will shortly address and seek to determine. Nevertheless that determination requires realistically, and as a practical matter for reasons I have foreshadowed, the determination of all issues raised by the appellants in argument, and thus issues of a conceivably substantive as well as of an adjectival nature.

Should leave to appeal be granted against the orders as to suppression

28 The fourth and conveniently the next issue arising is whether leave to appeal should be granted to the appellants against the orders of the primary judge made on 14 February 2005 as to suppression from public access of documentary material on the Court file and records. Those orders have been already reproduced in these reasons.

29 The Commonwealth submitted that the suppression orders would have been in the following terms, to which however the appellants claimed not to have agreed:

‘Draft Consent Order

1. If access to the file is sought by anybody other than the parties or the officers or Judges of an Australian Court, then the parties or their solicitors are to be notified and such access is not to be granted without further order of the Court, with the parties or their solicitors first being given the opportunity to make submissions as to what the orders ought to be, or if the Applicants consent in writing to access being given.

2. The identity of the Applicants as the applicants in this proceeding may be disclosed:

(a) to the Judges and officers of any Australian Court;

(b) to the parties and their legal representatives;

(c) to officers of the Department of Immigration and Multicultural and Indigenous Affairs;

(d) to members and officers of the Refugee Review Tribunal; and

(e) as permitted or directed or ordered by a Judge of an Australian Court;

but not otherwise unless the disclosure is made by one of the Applicants, or the Applicants consent in writing to the disclosure.’

30 Instead the appellants sought orders in the following terms:

‘1. If access to the file is sought by anybody other than the parties, the parties or their solicitors are to be notified and such access is not to be granted without further order of the Court, the parties or their solicitors being given an opportunity to make submissions as to what the order ought to be.

2. Any judgment in this matter when published on the Internet or when published or reported shall not include the day upon which the Applicants arrived in Australia but may include the month or the season (winter) when they arrived in Australia.

3. The identity of the Applicants as the applicants in this proceeding may be disclosed:

(a) to the Judges and officers of this Honourable Court;

(b) to the parties and their legal representatives;

(c) to officers of the Department of Immigration and Multicultural and Indigenous Affairs;

(d) to members and officers of the Refugee Review Tribunal;

(e) to the Judges and officers of any Australian Court that is hearing an application arising from a decision or purported decision made under the Migration Act 1958 in which any of the Applicants is a party;

but not otherwise unless the disclosure is made by one of the Applicants, or the Applicants consent in writing to the disclosure.

4. The transcript in the proceeding is confidential to any party that is not a party in the proceeding.’

31 Counsel for the Commonwealth informed the Court that there was a period of time when the Court’s computer system wrongly indicated that the orders made by Wilcox J were made by consent. In any event, the Commonwealth contended that the suppression order made by Wilcox J, having been made in exercise of a discretion, contained no error of fact or law, such that it should be set aside on appeal. The appellants contended on the other hand that any protection so purportedly provided would not be otherwise sufficient. The Commonwealth rejoined that there was no evidence to support that conclusion, and contended that the order sought by the appellants was not appropriate, and in particular because ‘...the applicants [ie appellants] have the power to prevent disclosure to the extent suggested even contrary to the orders of a Judge of an Australian Court’.

32 I put to one side the need for the appellants to obtain leave to appeal against the suppression orders made by his Honour. Those orders fell within the scope of the discretion of the primary judge. The task of the appellants to demonstrate on appeal, or more strictly in relation to what is on true analysis an application for leave to appeal, is a formidable one, given the discretionary scope of decision-making afforded to the primary judge. The appellants have not demonstrated the existence of any error of law on the part of the primary judge in making orders that fell in my opinion within the scope of his Honour’s legitimate extent of discretion. On the contrary the Commonwealth’s rejoinder as to the scope of protection is clearly correct. Leave to appeal against the suppression orders of the primary judge of 14 February 2005 must therefore be refused.

The principal or substantive issues raised on the appeal

33 The next segment of submissions related to the issues the subject of the principal or substantive issues proceedings resolved by the primary judge, the appellants contending that the primary judge erred by failing to address two of the four grounds advanced in their appellate pleadings lodged with the Court, and in any event by concluding that there was no seriously arguable case to be answered within the scope of the two grounds that were presented and argued on their behalf. It will be recalled that I have already made reference to four grounds of complaint, the same having been respectively designated A, B, C and D in the appellants’ amended notice of appeal earlier extracted. The position adopted by the Commonwealth was that there took place a discussion between the parties towards the end of the hearing, in the course of which his Honour was clearly attempting to ensure that he understood the breadth of the matters that were being pressed in the context of what may be described for practical purposes as the substantive appeal. The primary judge considered that the result of that discussion was that the appellants’ counsel agreed that the points covered orally by the parties in the presentation in address of their respective cases were those that his Honour was required to resolve. In those circumstances, it was submitted that his Honour did not err by failing to deal with the two issues which the appellants had chosen by their counsel not to address.

34 As to Ground A of the notice of appeal, designated by the Minister as the ‘translation issue’, it would appear that the same related to a contention raised by the appellants that the Tribunal was obliged to notify them upon the discovery of any flaw in the translation of a document containing claims made by them in the French language which they employed, and thereby give the appellants the opportunity to rectify the flaw. Upon that footing, the appellants asserted that they would in fact have done something to rectify the flaw which they asserted to have crystallised. That flaw was said to have crystallised by virtue of the Tribunal’s discovery that one particular material word in a purported translation of the document concerned was in fact wrongly translated. It is not entirely clear as to whether or not this issue was ultimately pursued or else abandoned by the appellants, and I have therefore addressed the same in any event. The Minister’s response was that there was no authority for a proposition of that kind, and further that the flaw appears to have been discovered by the Minister’s delegate in any event, whereafter it was corrected. Moreover, it was said by counsel for the Commonwealth that it was not the case that ‘... the interpretation is so poor that it inhibits a person from exercising their right to present their case’, so that no conceivable jurisdictional error was in fact made. The Full Court was referred in that regard to Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, where it was pointed out by Kenny J inter alia that an interpretation undertaken in relation to Tribunal proceedings must be of a sufficiently high quality such as to ensure that justice is both done and seen to be done. The context in relation to that observation was however different significantly to that here involved, in that her Honour considered that the interpretation was so incompetent that the putative refugee was effectively prevented from giving evidence to the Tribunal in relation to a matter of significance to his claim. Thus as the Commonwealth pointed out with sufficient justification, the appellants did not distil ‘even one mistake by the Tribunal in understanding their claims’, and in any event that the Tribunal indicated that it had read the appellants’ claims relevantly to the present subject of debate from the second appellant’s original in French. Moreover it was asserted by the Commonwealth that no omission by the Tribunal was in any event distilled. In all the circumstances, I think it must be concluded that the Commonwealth sufficiently answered the foregoing contentions of the appellants as to jurisdictional error the subject of Ground A.

35 As to Ground B, the appellants contended that only three of six items of country information referred to in the material provided by the Minister to the Tribunal had been provided to them. Subsequently however the appellants maintained that complaint in relation to only one of those items, and so much was verified by affidavit evidence provided by the Commonwealth. Nevertheless the appellants asserted that if that single item of information had been provided to them by the Minister, the appellants would have sought to emphasise material contained in such document concerning circumstances prevailing in Romania which was favourable to their case. The Commonwealth maintained in any event that the document had not been provided to the appellants on the footing that it was not adverse to the appellants’ claims, but rather was used to indicate that the appellants may be at greater risk because Romanian officials could access old Securitate files of the former regime. In any event the Commonwealth contended that the Tribunal was under no obligation to disclose material favourable to the appellants’ claims, though whether that later proposition by way of purported rejoinder be correct, in relation to material knowingly in the Minister’s possession, may be an issue for another day, given that the material has a bearing of truly current significance. All that was said by the Commonwealth was in any event academic, given that the Tribunal did, as the Commonwealth maintained, pay regard to the material identified. I would accept the Commonwealth’s submission that this present ground of appeal evinces no procedural unfairness on the Commonwealth’s part or for which it was responsible, and would have had no prospect of appellate success.

36 As to Ground C, the appellants contended that if they had known that the Tribunal would not have paid regard to the letters from St Monica’s School written in favour of the appellants and which were tendered to the Tribunal, steps would have been taken to ensure that further information of a similar kind would have been provided to the Tribunal. The response of the Commonwealth was that this purported ground for review failed at the outset, it not having been established that the Tribunal did not have regard to those letters. Moreover the Commonwealth further rejoined to the effect that there was no obligation on the part of the Tribunal to refer to every document provided by an applicant to the Department, in any event in the course of the Tribunal’s reasons for decision. The Full Court was referred in that regard to Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 (2003) 79 ALD 715 as authority for the proposition that the omission of a reference by the Tribunal to a document placed before it does not support the inference that it was not considered. That proposition so unqualified to the extent pressed by the appellants may require qualification, depending upon the nature and purpose of the document, but in the present context, I am unable to see any sufficient or compelling basis for reliance upon any such factor referrable at least to the kind of documents the subject of complaint. I should further record that the appellants sought to obtain the benefit of an inference that the Tribunal would not have considered one of the character references placed before the Tribunal because its author withdrew his support for the appellants by subsequent communication with the Tribunal. In that regard, the Tribunal recorded the following diary entry in relation to the husband appellant:

‘28.2.00 Rec’d a call from Mr John Laffan, Headmaster of St Monica’s Richmond. He stated that he no longer wished to be associated as a supporter of the applicant. I explained his claim of being a sponsor to the applicant was not a recognised position in the case and that he had no residual obligations in the matter.’

37 I would accept the Commonwealth’s response that even if so much would support such an inference as to omission of consideration of the character reference of the headmaster, it was further the case that [the wife] had become aware of that circumstance prior to the Tribunal’s decision.

Conclusions

38 It follows from the events and circumstances to which I have referred and reviewed that the application for leave to appeal to the Full Court from the decisions of the primary judge (Wilcox J) made on 11 February 2005 have not demonstrated any sufficiently viable basis for the grant of leave to appeal, and if leave to appeal not be required, the applicants have not made out any viable grounds for appeal in any event, such as to require the setting aside of the decision of the primary judge.

39 Whilst cognisant of the confined scope of the issues arising on the appeal, I would nevertheless commend for reconsideration by the Minister, pursuant to s 417 of the Migration Act 1958 (Cth), the following factors concerning this evidently unfortunate family, which may conceivably be thought to render permissible their remaining in Australia upon some appropriate visa basis. They are factors which might warrant reconsideration upon grounds divorced from the issues that have arisen for resolution on the appeal, being factors to which reference has already been made in the course of the reasons for judgment:

(i) the unfortunate circumstances which befell the appellants in Belgium, prior of course to their departure for Australia, and at least the physical injuries caused by the fire to the applicant husband and wife;

(ii) the residence of the appellants continuously in Australia since arrival from Belgium eleven years ago, and the extent to which they appear from the evidence to have adapted to residence in Australia, including the apparently successful schooling of the two sons, and the apparently gainful employment or self employment in Australia of individual family members over seemingly a substantial period of time;

(iii) the birth and schooling of the daughter born in Australia, she not being of course an applicant in the proceedings;

(iv) the finding as to genuine subjective fear made by the Tribunal in its reasons for decision of 21 December 1998; and

(v) the evident support apparently provided to the appellants by the wider Australian community generally, to an extent seemingly implying significant respect as well as sympathy.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 18 May 2006

Appellants appeared in person
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 November 2005
Date of Judgment:	18 May 2006