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Federal Court of Australia |
Last Updated: 10 March 1999
PASINI v BOLAND [1999] FCA 188
Migration Act 1958 (Cth) ss 57, 425, 426, 427, 475, 476 and 485(1)
Judiciary Act 1903 (Cth) s 39B
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 - distinguished
Rani v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 619 - considered
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 - applied
Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 - applied
Shadforths Ltd v Human Rights Commission [1991] FCA 526; (1991) 32 FCR 303 - not followed
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 - cited
Pepaj v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Merkel J, 25 November 1998) - cited
National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 - cited
Boucher v Australian Securities Commission (1996) 71 FCR 122 - cited
Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 - cited
McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 - cited
Conduah v Russell (Federal Court of Australia, Burchett J, 15 May 1998) - cited
Meadows v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Einfeld, von Doussa and Merkel JJ, 23 December 1998) - cited
Watts v Hawke and Davie Syme Co Ltd [1976] VR 707 - distinguished
Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 - cited
PASINI v BOLAND
V 72 of 1999
MERKEL J
9 MARCH 1999
MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: First Applicant
TERESA PASINI CABAL
Second Applicant
CARLOS CABAL PENICHE
Third Applicant AND: First Respondent
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent
VICTORIA DISTRICT REGISTRY V 72 OF 1999
MARCO PASINI
KERRY BOLAND (in her capacity as a member of the Refugee Review Tribunal under the Migration Act 1958 (Cth))
JUDGE: MERKEL J DATE OF ORDER: 9 MARCH 1999 WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicants pay the second respondent's costs of and incidental to the application.
3. Liberty be reserved to the first respondent to apply for 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 72 OF 1999 |
|
BETWEEN: | MARCO PASINI
First Applicant
TERESA PASINI CABAL Second Applicant
CARLOS CABAL PENICHE Third Applicant |
|
AND: | KERRY BOLAND (in her capacity as a member of the Refugee Review Tribunal under the Migration Act 1958 (Cth))
First Respondent
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Second Respondent |
|
JUDGE: | MERKEL J |
| DATE: | 9 MARCH 1999 |
| PLACE: | MELBOURNE |
Background
1 The first applicant ("Pasini") and the third applicant ("Peniche") are the subject of extradition proceedings under the Extradition Act 1988 (Cth) ("the Extradition Act") as a result of requests by the Government of the United Mexican States for their extradition to Mexico. The extradition requests were made by the Mexican Government following the issue of warrants of arrest in Mexico against Pasini and Peniche for offences against Mexican law allegedly committed in 1993 and 1994. Pasini and Peniche appeared in the Melbourne Magistrates Court on 15 February 1999 and were remanded in custody until 15 June 1999 being the date upon which the extradition proceedings were set down for a contested hearing in the Magistrates Court. The proceedings involve the exercise of administrative, rather than judicial, power: see DPP (Cth) v Kainhoffer (1995) 185 CLR 528 at 538-539.
2 On 13 November 1998 Pasini and his wife, the second applicant ("Cabal"), made application under the Migration Act 1958 (Cth) ("the Act") for protection visas on the ground that they were refugees. They allege that the Mexican Government is pursuing criminal proceedings against Pasini and Peniche for political reasons and in doing so are persecuting them and their families on the ground of their political opinion. As a consequence, they claim that they have a well founded fear of political persecution and are therefore refugees to whom Australia has protection obligations under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees ("the Convention").
3 On 8 December 1998 a delegate of the Minister refused the protection visa applications of Pasini and Cabal. On 14 December 1998 Pasini and Cabal applied to the Refugee Review Tribunal ("the RRT") to review the decision of the delegate. The RRT, pursuant to s 425(1)(a) of the Act, scheduled 22 February 1999 as the date on which it proposed to commence giving Pasini and Cabal an opportunity to appear before it to give evidence.
4 The solicitors acting for Pasini, Cabal and Peniche requested the RRT not to proceed with its hearing, or its review, until the hearing and determination of the extradition proceedings. The solicitors contended that:
* a substantial issue to be determined in the extradition proceedings was whether Pasini's and Peniche's extradition was being sought for the purpose of prosecuting or punishing them on account of their political opinions or for political offences;
* as a consequence, Pasini and Peniche may be prejudiced at their trial in Mexico or punished, detained or restricted in their personal liberty by reason of their political opinions;
* if the political persecution alleged by Pasini and Peniche is established they would not be eligible for surrender in relation to the offences for which their surrender is sought: see ss 19(1), 19(2)(d), 7(b) and 7(c) of the Extradition Act;
* the continuation of the RRT hearing would severely prejudice the defence by Pasini and Peniche of the extradition proceedings because of the overlap between the issues required to be established to the satisfaction of the RRT that Pasini and Cabal are political refugees and the issues required to be established in the Magistrate's Court to discharge the onus cast upon Pasini and Peniche to satisfy the court that they are ineligible for extradition.
5 Pasini and Cabal also submitted to the RRT that, in any event, it was oppressive and unfair for the RRT to proceed with its review prior to Pasini and Cabal having an opportunity to prepare the evidence they wished to give and the case they wished to present. The applicants also contended that they are entitled to know the case they have to answer at their hearing. Accordingly, they submitted that they were entitled to receive access to all of the material which is in the possession of the RRT in relation to their "case".
6 Finally, a request was made to the RRT to inform Pasini and Cabal as to the steps it proposed to take in conducting its review to enable Pasini and Cabal, and their legal advisers, to prepare their case before the RRT.
7 On 22 February 1999 the RRT refused to accede to the "adjournment" application made by Pasini and Cabal, declined to provide to them all of the material in its possession in relation to them and did not state how it intended to proceed, although the tribunal member said that she accepted that the applicants may need time to provide further evidence and would deal with that issue at the conclusion of the hearing. The conduct of the RRT was said by the applicants to have resulted in a failure by it to act in accordance with its statutory duties including its duty to act fairly and according to "substantial justice and the merits of the case" as required by s 420 of the Act.
8 On 22 February 1999 Pasini, Cabal and Peniche commenced this proceeding, pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), seeking a writ prohibiting the RRT from further proceeding with the review.
9 On 22 February I refused an application by the applicants for urgent interim relief but expressed concern that Pasini's evidence was to be received by the RRT by video transmission to the RRT with Pasini in jail surrounded by guards. I have been informed by the parties that that situation changed and no complaint is now made as to the mode by which Pasini's evidence was taken. On 22 and 23 February the RRT received evidence from Pasini and afforded Cabal the opportunity to comment on any matters upon which she wished to comment.
10 At the conclusion of that hearing the Tribunal indicated that it would consider the request of Pasini and Cabal for the RRT to call witnesses under s 426 of the Act. The solicitors acting for Pasini and Cabal were advised that "in the near future" the RRT would inform them as to how it "intends to proceed".
Jurisdiction
11 On the basis that the application was to review "conduct" of the RRT, senior counsel for the Minister contended that the Federal Court has no jurisdiction in the matter by reason of s 485(1) of the Act. He submitted that until a judicially reviewable decision has been made by the RRT the Federal Court does not have any jurisdiction under s 39B, or otherwise, to review conduct engaged in for the purpose of making a judicially-reviewable decision. The Minister relied upon the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 18-27 to contend that s 485(1) is to be construed as excluding the jurisdiction of the Court to review conduct engaged in for the purpose of making a decision irrespective of whether the decision was or was not a judicially-reviewable decision, as defined in s 475 of the Act, and irrespective of whether the decision has or has not been made. Thus, so it was said, although the decision that will be made by the RRT after it has conducted its review under s 414(1) of the Act, is a judicially-reviewable decision for the purposes of Pt 8, Ozmanian is authority for the proposition that the conduct engaged in for the purpose of making that decision is not reviewable by the Court.
12 Ozmanian was concerned with an application to review conduct in respect of a decision under the Act that had been made but which was not reviewable by the Court by reason of ss 475(2) and 485(1) of the Act. In that context, the Full Court determined that the Court did not have jurisdiction to review conduct engaged in for the purpose of making a decision that was not reviewable by the Court under Pt 8. Ozmanian is authority for the proposition that the Court has no original jurisdiction under Pt 8 of the Act, s 39B of the Judiciary Act or under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") to review conduct engaged in for the purpose of making a judicially-reviewable or non judicially-reviewable decision after it has been made. However, Ozmanian does not deal with the situation in the present case in which judicial review is sought of conduct engaged in for the purpose of making a decision under the Act prior to the decision being made. Counsel for the applicants contended that, as no decision under the Act has been made, s 485(1) does not operate to exclude the jurisdiction of the Court to make orders under s 39B of the Judiciary Act in the nature of prohibition or mandamus against a tribunal member who is an officer of the Commonwealth.
13 Section 475(1)(b) provides that a decision of the RRT is a judicially-reviewable decision. Pursuant to s 476 an application may be made for review, by the Federal Court, of a judicially-reviewable decision on the grounds specified in s 476(1) but not on the ground that a breach of the rules of natural justice occurred "in connection with the making of the decision": see s 476(2)(a). Section 478(1)(b) requires that an application for review must be lodged with a registry of the Federal Court "within 28 days of the applicant being notified of the decision". The legislative scheme in Pt 8 is concerned with review of decisions made under the Act; it does not deal with review of conduct engaged in for the purpose of making a decision under the Act cf: s 6 of the ADJR Act.
14 Section 39B of the Judiciary Act confers jurisdiction on the Court with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Accordingly, the jurisdictional issue in the present case is whether the Court has been deprived of that jurisdiction by s 485(1) of the Act. Section 485(1) provides:
"485 (1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903."15 In Ozmanian, (at 26-27) Sackville J (with whom Jenkinson and Keifel JJ agreed) said that the ordinary meaning of s 485(1), in its statutory context, is that the Court is deprived of jurisdiction to grant relief in relation to conduct preceding but engaged in for the purpose of making a decision, as well as in relation to the decision itself, other than on the grounds specified in s 476(1) of the Act. However, his Honour's conclusion was in the context of a challenge to conduct engaged in for the purpose of making a decision that had already been made. In Ozmanian review was sought of conduct on the ground that a breach of the rules of natural justice had occurred which was a ground that was not available for review by the Court of the decision itself. Sackville J observed that Pt 8 of the Act was intended to deal comprehensively with procedures for, and grounds of review of, judicially reviewable decisions. In that context his Honour concluded (at 27) that s 485(1) should be construed as excluding the jurisdiction of the Court to review conduct engaged in for the purpose of making a decision which had been made under s 417 but which was not reviewable by the Court by reason of s 475(2). Sackville J (at 20-21) said that once a decision has been made it is not easy to see the relevance, for the purposes of judicial review, of a breach of the rules of natural justice in the course of the conduct preceding a decision, except in order to challenge the decision itself. It was central to the reasoning in Ozmanian that permitting review of conduct engaged in for the purpose of making a decision, where the decision itself was not reviewable, would undermine the legislative intent to immunise the decision in question from review.
16 However, in the present case, unlike Ozmanian, there has not yet been a decision made. Thus, the incongruity that concerned the Court in Ozmanian, of review of a decision being denied through "the front door", but gained through "the back door", is absent.
17 In circumstances where a challenge is made to conduct prior to a decision being made there may be good reason for a court to intervene if a breach of the rules of natural justice is clearly established. The rules of natural justice are designed essentially to ensure "fair play in action". The court's supervisory jurisdiction ensures that the merits review to which an applicant is entitled is in accordance with law. RRT review is the final occasion upon which an applicant for refugee status is entitled to a review on the merits of his or her claim for refugee status. Although under Pt 8 the legislature may have removed breach of the rules of natural justice as a ground of review in the Court when a decision has been made, it does not follow that prior to the decision the RRT's duty to comply with the rules of natural justice should be unenforceable. In my view, prior to a decision being made, there is no incongruity in a ground of review being available in a proceeding in the Court in respect of conduct engaged in for the purpose of making the proposed decision where, once that decision has been made, the review, or the relevant ground, may no longer be available.
18 Accordingly, Ozmanian does not provide the answer to the question of whether in the present case, on the proper construction of s 485(1), the jurisdiction that would be conferred on the Federal Court under s 39B(1) of the Judiciary Act has been removed by s 485(1). Section 485(1) only deprives the Court of jurisdiction "in respect of judicially-reviewable decisions or decisions covered by sub-s 475(2)". The section does not purport to deprive the Court of jurisdiction, with respect to a matter relating to conduct that is antecedent to a proposed decision, in a proceeding brought prior to the decision being made. As explained above, in the context of the statutory scheme established under Pt 8, there is no incongruity in construing the removal of jurisdiction under s 485(1) as not extending to a review of conduct engaged in for the purpose of making a decision prior to the decision being made if that conduct is reviewable under s 39B of the Judiciary Act.
19 An analogous issue was considered by Sackville J in Rani v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 619 at 628-629. In Rani Sackville J held that the jurisdiction conferred on the Federal Court in respect of matters arising under a law made by the Parliament under s 39B(1)(A)(c) was not excluded by s 485(1) as no relevant judicially-reviewable decision had been made. His Honour (at 629) said in respect of the cancellation of a wife's visa by operation of law as a consequence of a decision to cancel her husband's visa:
"The fact that the cancellation is said to flow from the decision to cancel the husband's visa does not mean, in my view, that the wife's proceedings are `in respect of [a] judicially reviewable decision'.20 For those reasons I am of the view that s 485(1) does not expressly, or by implication, remove the jurisdiction conferred by s 39B of the Judiciary Act in respect of conduct engaged in for the purpose of making a decision which has not yet been made. Accordingly, the objection to competency on the part by the Minister fails with the consequence that prior to a decision being made the Court, under s 39B(1), has the full amplitude of the High Court's jurisdiction under s 75(v) of the Constitution in respect of conduct of an officer of the Commonwealth.
There is jurisdiction to entertain the child's claim because he claims to have become an Australian citizen by virtue of s 10 of the Australian Citizenship Act. His claim therefore arises under a law made by the Parliament. Again, s 485(1) of the Act does not apply because there has been no relevant `judicially-reviewable decision'."
21 The Minister also contended that if, contrary to his submission, the conduct was reviewable by the Court then it was reviewable as a "decision" of the RRT to refuse to adjourn its review. It was said that such a decision was a refusal to exercise power under s 427(1)(b) to adjourn the review until after the hearing and determination of the extradition proceedings. The refusal to adjourn the review was said to be a judicially-reviewable decision under s 475(1) with the consequence that:
* as in Ozmanian, a decision has been made and the grounds of review of that decision exclude review of conduct engaged in for the purpose of making the decision;
* the grounds of review of the decision are limited to the grounds in s 476(2) which exclude breach of the rules of natural justice.
22 In general, since Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, only decisions that are final or operative and determinative, at least in a practical sense, of the issue falling for consideration are reviewable under the ADJR Act or its statutory counterparts, such as Pt 8 of the Act. Thus, under Pt 8, the decisions that are judicially-reviewable decisions are those which deal with and determine substantive applications rather than decisions which are merely procedural in nature: see Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 at 306-311 per Goldberg J and the cases there cited.
23 In the usual course, a refusal to adjourn an administrative hearing is a procedural matter that, for the purposes of judicial review, might be reviewable as "conduct" but not as a decision under the relevant enactment: see Bond at 337-338 per Mason CJ. A procedural decision specifically provided for (Bond at 338 per Mason CJ) or expressly or impliedly required by an enactment may be reviewable as a "decision" and not as conduct. But procedural decisions are not reviewable merely because the enactment empowers or authorises, in a general way, the decisions to be made: see Jayasinghe at 309-310 and the cases there cited. In my view the RRT's refusal to adjourn falls into this latter category and is merely procedural and, if reviewable, is only reviewable as conduct under s 39B and not as a judicially-reviewable decision under Pt 8.
24 In Shadforths Ltd v Human Rights Commission [1991] FCA 526; (1991) 32 FCR 303 at 315 Olney J treated a refusal to adjourn as a decision under an enactment and therefore reviewable under the ADJR Act. However, Bond was not considered by his Honour and the conclusion he reached is not consistent with Bond or the authorities since Bond. In my view, therefore, Shadforths should not now be followed.
25 Accordingly, the Court has jurisdiction to review the conduct of the RRT in the present case free of the limitations on the grounds of review contained in s 476(2).
The rules of natural justice
26 Since Kioa v West [1985] HCA 81; (1985) 159 CLR 550 it has been accepted that, in general, the rules of natural justice apply to the making of visa decisions under the Act in relation to particular individuals, subject to any legislative provision or intention to abrogate those rules. Although s 476 precludes non-compliance with the rules of natural justice as a ground of review in the Federal Court, neither that section or any other section of the Act abrogates the duty of the RRT to comply with the rules of natural justice in its review of a decision of the delegate of the Minister to refuse to grant a protection visa. Thus, in the present case a breach of the rules of natural justice is a ground of review under s 39B. However, the content of the rules in a particular case depends on the circumstances of each case including the nature of the inquiry, the subject matter and the rules under which the decision maker is acting: see Kioa at 584-585 per Mason J.
27 The RRT is an inquisitorial body with a wide discretion to conduct its review in the manner provided by the Act. The precise content of its duty to do so in compliance with the rules of natural justice has been complicated by cases relating to the role of s 420 and whether the Court is entitled to regard unfair procedures by the RRT as a ground for review under Pt 8 of the Act.
28 The Act provides that the RRT is to conduct its proceedings in a manner which incorporate elements of an inquisitorial proceeding, principally the ability to obtain "such...evidence as it considers necessary": see s 425(1)(b). Save for the applicant, the RRT has a discretion as to who it will hear and in relation to what matters: see ss 426, 427(3). As the Act does not provide for there to be any respondent to proceedings before the RRT, the applicant is the only party to the application. The Act also excludes certain characteristic features of the adversarial system, such as an enforceable right of a party to call witnesses (ss 425(2), 426) and the right to be represented, or to cross-examine witnesses (s 427(6)). These inquisitorial powers of the RRT are reinforced by powers to have investigative procedures conducted on its behalf: see ss 427(1)(d) and 428. The Act's guidelines in respect of the exercise by the RRT of its review powers, link the inquisitorial nature of the procedure with the manner in which merits review is to be conducted: see for example s 420(2). Concepts such as onus of proof and burden of proof have no role to play before the RRT: see Immigration and Refugee Law in Australia, Mary Crock (1998) at 138 and 262 and the authorities there cited. As stated in Pepaj v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Merkel J, 25 November 1998) at 7 the RRT must:
"...determine whether it is `satisfied' that the applicant for a protection visa is a refugee in accordance with the definition of a refugee as set out in the Convention : see ss36 and 65 of the Act and at 866.22 of the Migration Regulations. Thus the question is not one of onus but one of satisfaction"29 The duty of an administrative decision maker to comply with the rules of natural justice is not equivalent to a duty to follow curial procedures. What is required is fairness in all the circumstances of the particular case: see Kioa at 583-585, 601, 613-614 and 622, National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 and Boucher v Australian Securities Commission (1996) 71 FCR 122 at 128-129. Fairness does not necessarily require disclosure of all of the details of the material which is adverse to an applicant's claim; it is sufficient if the "gravamen" of the information intended to be relied upon by a decision maker is brought to the applicant's attention: see Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230 and McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601. But, as the decision in Kioa itself demonstrates, the disclosure is not limited to the matters intended by the decision maker to be relied upon. Quite often the decision maker will only determine those matters in the course of preparing or making the decision. It can be expected in a refugee claim that the RRT will bring to the attention of the applicant "the critical issue or factor on which the administrative decision is likely to turn" (Kioa, 587 per Mason J) or relevant matters adverse to the interests of the applicant which are "credible, relevant and significant to the decision to be made" (Kioa, 629 per Brennan J) or the "matters raised against them" (Kioa, 634 per Deane J).
30 I approach the issues in the present case with these principles in mind.
Has the RRT breached the rules of natural justice?
31 The applicants approached their entitlement to review by the RRT as if they had a right to curial procedures as parties to an adversarial proceeding in which they have "a case" to present or "a case" raised against them which they had to answer. They, quite wrongly in my view, saw themselves as entitled to "demand" that the RRT conduct itself in much the same manner as a court might conduct itself.
32 The applicants' approach involves a fundamental misconception of the function of the RRT. It is not a court; it is an inquisitorial administrative tribunal with a wide discretion as to the procedures it adopts to determine whether it is satisfied that Pasini and Cabal have a well founded fear of political persecution. Prior to a determination being made by the RRT, refugee claimants are to be afforded an opportunity to deal with the evidence and material before the RRT in accordance with the rules of natural justice. However, there are substantial difficulties confronting a claimant who wishes to contend that the RRT is acting in breach of the rules of natural justice in relation to the procedures it is adopting in order to make its proposed determination. For sound policy reasons (save in extreme or clear cases) courts display considerable reluctance in interfering with the processes of administrative decision-making prior to a decision being made: see for example Conduah v Russell (Federal Court of Australia, Burchett J, 15 May 1998). The policy against interference is that it would lead to a "fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process": see Bond at 337 per Mason CJ. Further, the wide discretion of the RRT to conduct its hearing inquisitorially will generally make it difficult for a claimant, as a matter of fact, to establish a breach of the rules prior to a determination being made.
33 The grounds in the Amended Application, which were relied upon at the hearing as constituting breaches of duty on the part of the RRT, may be summarised as follows:
(a) the RRT, by taking evidence from Pasini and Cabal prior to affording them a reasonable opportunity to prepare and present their case, including obtaining material to establish the facts upon which their claims to be entitled to refugee status are based, acted unfairly and in breach of its obligations under s 420 of the Act;
(b) the RRT, in breach of s 57 and s 420 of the Act, failed to provide to the applicants particulars of the information currently in its possession which is material to their claim for refugee status;
(c) the RRT, by refusing to inform Pasini and Cabal as to the steps it proposes to take in conducting its review, severely prejudiced and disadvantaged their ability to prepare and present their case and, in particular, arrange for witnesses to come to Australia from Mexico;
(d) the refusal of the RRT to adjourn its review until the hearing of the extradition proceedings severely prejudiced and disadvantaged the applicants in their defence of the extradition proceedings.
34 Other grounds were raised in the material and in the amended application but at the hearing counsel for the applicants confined her submissions to the above matters. For the reasons explained above, the real issue in the present case is whether the applicants have established that the RRT has acted in breach of the rules of natural justice in respect of the above matters rather than whether it has failed to properly exercise particular statutory discretionary powers. If breach of the rules of natural justice cannot be established it is most unlikely that the challenge to the exercise of the RRT's discretionary procedural powers could be established.
(a) The giving of evidence by Pasini and Cabal
35 The RRT, understandably, regarded it as appropriate at an early stage of its review to hear why Pasini and Cabal claim to have a well founded fear of political persecution if they were returned to Mexico. The claim involves a subjective and an objective element. The subjective element relates to whether they have the fear claimed. The objective element relates to whether the fear is well founded. A logical starting point for each element will be the reasons proffered by each claimant for his and her fear of persecution for a Convention reason.
36 The evidence does not establish that there was any unfairness on the part of the RRT in requiring that Pasini and Cabal give evidence as to why they claim to have a well founded fear of political persecution. Their applications for protection visas were lodged on 13 November 1998. As was pointed out by their counsel, they have had at their disposal considerable resources to pursue their claim of political persecution; the resources include a number of lawyers acting for them in Mexico and in Australia. Ultimately, all that counsel could put forward to support the ground of unfairness was a series of events since November 1998 which demonstrated that the applicants and their families had been under enormous personal pressures, were parties to numerous proceedings and had suffered a general dislocation to their lives as the result of the cancellation of their visas and the immigration detention and subsequent imprisonment of Pasini and Peniche.
37 Whilst I can accept all of those matters, I am not satisfied that they demonstrate that it was unfair, let alone a breach of the rules of natural justice, for the RRT, on 22 and 23 February, to proceed to receive evidence from Pasini and Cabal in support of their claim that they each had a well founded fear of political persecution. The RRT has not stated that it will not hear further evidence from Pasini or Cabal. It is as open to Pasini and Cabal to request that they be permitted to give further evidence, as it is open to the RRT to request that they give further evidence. Whilst the RRT received evidence from Pasini and Cabal over two days, their counsel did not point to any difficulty that they had in giving their evidence notwithstanding the availability of the transcript.
(b) Access to material
38 Counsel for the applicants relied upon s 57 of the Act as entitling them to be given all relevant information concerning them which is in the possession of the RRT. The submission is misconceived. Section 57 applies only to the information which is to be given by the Minister, or his delegate, at the first decision making stage under the Act and has no application, expressly or impliedly, to the RRT on its review of that decision.
39 Reliance was placed on the decision of Madgwick J in Thin Thin Cho v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Madgwick J, 22 December 1998). His Honour considered that the "substance of the s 57 powers is required to be exercised" by the RRT but only where there is a serious risk of substantial unfairness or of a wrong decision being made if the powers in question were not exercised. His Honour's statement accords with the requirements of the rules of natural justice. Further, as the recent decision in Meadows v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Einfeld, von Doussa and Merkel JJ, 23 December 1998) demonstrates, the source of the obligation referred to by Madgwick J need not be s 57; it is uncontentious that the duty of the RRT, while conducting a review, is to plainly and unambiguously raise with an applicant the critical issues on which his or her application might depend.
40 Further, I am not satisfied that the RRT has acted or proposes to act in breach of any of the above principles. Indeed, at the hearing on 23 February the RRT raised with Pasini and Cabal particulars of adverse material which it has in its possession. I have no reason to expect that it will fail to do so in respect of any other similar material when appropriate.
41 There is a further problem with the applicants' reliance on s 57. Even if it did apply, it only imposes an obligation to provide the relevant information to the applicant "in the way that the Minister considers appropriate in the circumstances": see s 57(2)(a). In the present case the evidence does not establish that the RRT will not provide relevant information in the way it considers to be appropriate in the circumstances.
(c) Procedural directions of the Tribunal
42 Complaint was made of the failure of the RRT to indicate how it proposes to proceed with its review. This complaint was difficult to follow. The applicants seemed to be contending that they had a right to know precisely how the RRT was proposing to conduct its review through to its conclusion. However, as indicated above, at the conclusion of the hearing on the second day on which evidence was given, the Tribunal concluded the hearing by saying it proposed to advise in the near future "as to how the Tribunal intends to proceed". Thus, not only has there been no refusal on the part of the Tribunal to indicate how it proposes to proceed, but it stated that it proposes to indicate how it intends to proceed in respect of calling further witnesses.
43 There is no obligation on the part of the RRT to stipulate in advance how it will conduct its review. Subject to the rules of natural justice, the RRT has a very broad discretion as to the manner in which it may conduct its review and as to whether, and when, it informs claimants of the steps it proposes to take in the conduct of the review. No reviewable error in the exercise of that discretion has been demonstrated. There is no substance in this ground of complaint which appears to have arisen from the applicants' misconceived endeavour to require the RRT to adopt curial procedures.
(d) The extradition proceedings
44 It is apparent that a decision has been made by the legal advisers for the applicants that it is in their best interest for the extradition proceedings to be heard and determined prior to the RRT's review under the Act. In particular, it was said there was a serious risk that important witnesses who would need to come from Mexico would be unlikely to come to Australia twice and that if they came for the RRT hearing they may not come for the extradition hearing and vice versa. However, even those matters were put as conjecture rather than reality. Further, as outlined above, the applicants have no right to call witnesses. Their right is to request the RRT to call witnesses (s 426) and give statutory declarations to the Registrar (s 423(1)(a)).
45 The applicants' further suggestion of a risk that information given to the RRT may be used in the extradition proceedings is not easily reconciled with the confidentiality provisions in the Act: see ss 429, 439 and 440.
46 The conceptual basis for the contention that there was some error of law or breach of duty by the RRT in proceeding with its review rather than adjourning it to be heard after the extradition proceedings was never clearly articulated. Reference was made to Watts v Hawke and Davie Syme Co Ltd [1976] VR 707 in which the Supreme Court of Victoria ordered that administrative proceedings be stayed as they might constitute a contempt of the court where adjudication of the very matter the subject of the administrative proceedings was to occur. Although the broad principle for which Watts was cited may be questioned (see Francis v The Herald and Weekly Times Ltd (Supreme Court of Victoria, Lush J, 17 March 1978) and Burton v Harris [1979] QdR 548) no valid analogy can be drawn between an order restraining the continuation of an administrative proceeding on the ground that it involves a tendency to interfere in the administration of justice and may be in contempt of court (for example see: Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25) and the exercise of a discretion refusing to defer one set of administrative proceedings in favour of another because there may be some alleged prejudice suffered if the deferral did not occur.
47 I am not satisfied that there is any legal or factual basis for the submission that the continuation of the review by the RRT would impair any right of the applicants, breach any duty of the RRT or result in any serious prejudice or disadvantage to the applicants. I can accept that the applicants legal advisers see it as both convenient and appropriate for the two sets of administrative proceedings to proceed in the way proposed by them. However, they have no legal right to require the RRT to adopt their proposed procedures; it is for the RRT to determine how to proceed with its review under the Act. Each of the administrative procedures is independent of the other, arises under separate legislation and is being conducted for separate and distinct purposes by different bodies.
Other matters
48 Actual and apprehended bias were also alleged against the RRT although those claims were not pursued at the hearing. The claims were without substance and, in any event, appeared to stem from the misconception of the applicants legal advisers that their clients were entitled to require the RRT to adopt curial procedures.
49 As the applications are to be dismissed with costs it is unnecessary to separately consider the position of Peniche, the third applicant, who is not an applicant for refugee status. I do not accept that there is any basis upon which Peniche can bring a claim for relief in respect of the matter before the RRT. It was alleged that his claim for relief was with respect to a matter arising under the Extradition Act and therefore within s 39B(1A)(c) of the Judiciary Act. However, that Act does not confer any of the rights claimed by Peniche and is not the direct source of any defence: see Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 382 and 388. Further, Peniche has had no right of any kind under the Extradition Act which was infringed by the conduct of the RRT of its review of the applications for refugee status by Peniche and Cabal.
Conclusion
50 For the above reasons I am satisfied that the applicants are not entitled to the relief sought. The application pursuant to s 39B of the Judiciary Act is to be dismissed with costs.
|
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice Merkel. |
Associate:
Dated: 9 March 1999
|
Counsel for the First, Second and Third Applicant: | Ms D Mortimer |
| Solicitor for the First, Second and Third Applicant: | Erskine Rodan & Associates |
| Counsel for the First, Second and Third Respondent: | Mr C Gunst QC with
Mr SGE McLeish |
| Solicitor for the First, Second and Third Respondent: | Australian Government Solicitor |
| Date of Hearing: | 25 February 1999 |
| Date of Judgment: | 9 March 1999 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/1999/188.html