FEDERAL COURT OF AUSTRALIA S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 APPLICANT S58 of 2003 -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, KIM ROSSER, MEMBER REFUGEE REVIEW TRIBUNAL, THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL NSD 576 of 2004 RYAN, MERKEL and CONTI JJ 5 NOVEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 576 of 2004 On appeal from a Judge of the Federal Court of Australia On remittal from the High Court of Australia IN THE MATTER of an application for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari against: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent KIM ROSSER, MEMBER REFUGEE REVIEW TRIBUNAL second respondent THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL Third Respondent APPLICANT S58 of 2003 Prosecutor/Appellant JUDGES: RYAN, MERKEL and CONTI JJ DATE OF ORDER: 5 NOVEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal, to be taxed in default of agreement. 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 NSD 576 of 2004 On appeal from a Judge of the Federal Court of Australia On remittal from the High Court of Australia IN THE MATTER of an application for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari against: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent KIM ROSSER, MEMBER REFUGEE REVIEW TRIBUNAL Second Respondent THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL Third Respondent APPLICANT S58 of 2003 Prosecutor/Appellant JUDGES: RYAN, MERKEL and CONTI JJ DATE: 5 NOVEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT The court: 1 This is an appeal from a judgment of a single Judge of the Court dismissing an application remitted from the High Court for writs of mandamus prohibition and certiorari directed to the Refugee Review Tribunal ("the Tribunal"). The exercise of the Court's discretion to extend time 2 The appellant is a Bangladeshi national who arrived in Australia on 31 August 1995. On 11 February 1997 he applied for a protection visa which was refused by a delegate of the respondent Minister on 30 April 1997. That refusal was affirmed by the Tribunal on 31 March 1998. However, the appellant did not institute proceedings for judicial review of that refusal until 13 February 2003. The learned primary Judge considered whether, in the exercise of the Court's discretion, the application for judicial review should be refused on the ground of delay. In this context, his Honour first noted at [14] of the reasons below: 'A line of authority in this Court has it that, upon remitter to this Court from the High Court, the time limits provided in the High Court Rules for instituting proceedings for certiorari (six months: O 55 r 17) and for mandamus (two months: O 55 r 30) continue to apply unless extended (under either High Court Rules O 60 r 6 or Federal Court Rules O 3 r 3): see e.g. Re Ross; Ex parte The Australian Liquor Hospitality & Miscellaneous Workers Union (2001) 108 FCR 399.' 3 Then followed an extensive quotation from the judgment of McHugh J in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 which identified, as among the factors to be taken into account in exercising the discretion to extend time, the prospects of success on the merits, the history of the matter, including the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. McHugh J also stressed the need for an end to litigation which calls into question the efficacy of acts or decisions of public bodies or officials. As well, McHugh J noted the presumption that rules of court imposing time limits are to be obeyed which entails that they should only be relaxed in exceptional circumstances. An applicant's inability to obtain favourable or competent legal advice within the time prescribed by the rules will rarely amount to such exceptional circumstances. 4 The learned primary Judge also cited these observations of Goldberg J in a cognate context in M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24 at [15]: 'There are a number of factors which the Court may take into account in determining whether an extension or an enlargement of time should be granted. Factors which the Court has taken into account in the past include the reason for the delay in applying for the issue of the writs, the length of the delay, whether any decision was made to accept the decision of the Tribunal and whether any party may be prejudiced if the extension is granted. There is also an underlying principle that there should be an end to litigation and that the Court should seek to achieve justice between the parties.' 5 In the course of applying to the present appellant the principles distilled from the cases just cited, it was noted that there would be little or no forensic prejudice to the respondent Minister if the extension were granted, and that the case is of great importance to the appellant. However, the learned primary Judge considered that those matters were "strongly outweighed" by the other factors identified in the authorities which he had cited and observed that "In any case, the harm to the public interest, should the applicant succeed in being pardoned for his delay, is highly relevant." 6 One matter to which his Honour accorded particular weight was the appellant's "acceptance" of the Tribunal's decision. That was inferred from an approach which the appellant had made to the Minister under s 417 of the Migration Act 1958 (Cth) ("the Act"). In support of this inference it was noted at [18] of the reasons at first instance: 'That is, when a person seeks the exercise of the Minister's s 417 powers, that person implicitly asserts that there is such a decision. But the applicant now wishes to say that the Tribunal made a jurisdictional error on account of having denied him natural justice; that is, he is necessarily asserting that in law there was no decision of the Tribunal: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; S157.' 7 His Honour acknowledged that the "acceptance" of the Tribunal's decision which he imputed to the appellant did not, as a matter of law, preclude an application for a prerogative writ which is made available by s 75(v) of the Constitution. However, he could see "no reason why a previous implicit assertion by the applicant of the validity of the Tribunal's decision ought not to be taken into account as a discretionary matter." 8 After discounting the appellant's prospects of success on the merits because of his likely inability to establish that his supporting documents were authentic, the learned primary Judge concluded as to the exercise of discretion: '21 In all these circumstances, in my opinion it would be quite wrong, even if the applicant has a good case on its merits for constitutional relief and notwithstanding the possible importance of the case to him, to sanction such a long and poorly explained delay. Where there is a formal time limit, I would not extend time to permit him to claim the relief sought. Further, I would as a matter of discretion decline, on the ground of the applicant's long and unsatisfactorily explained delay, to grant any relief to which he might otherwise be entitled. 22 In any event, the case as to constitutional relief appears not to be meritorious.' 9 That analysis has been criticised by Counsel for the appellant on the hearing of the appeal. It was submitted that, in the absence of evidence of a deliberate choice, an application under s 417 did not signify an election to accept the decision of the Tribunal. The inference was at least equally open that an applicant with little or no English and lacking the financial resources to retain legal representation would forego the preferable approach to this Court or the High Court for judicial review in favour of an application to the Minister only where that course was seen as the single feasible option. 10 This submission does not overcome the difficulty which weighed with the learned primary Judge that there was no evidence before the Court of the appellant's state of mind when he decided on 31 July 1998 and again on 20 August 1998 to write requesting the exercise in his favour of the Ministerial discretion conferred by s 417. It is true that in his affidavit sworn 2 October 2003 and filed in this Court the appellant deposed: 'I now will explain the reason why I delayed starting the proceedings. Once the Tribunal rejected my application I was shocked and surprised and it took some time for me to accept it. I wanted to go to Court for review but I did not have any financial means to do that so I could not go to court. By the time I realised my mistake time has passed and I was barred from applying because of time limits. Though I spoke to many people after that on several occasions everyone told me about the time limit that will bar any application in the court. However once the decision in S157 came there was the possibility that time issue could be overcome and therefore I quickly applied to the High Court to get a remedy in relation to my refugee application.' 11 The Tribunal's decision was made on 31 March 1998 at a time when the appellant was being advised by a firm of solicitors. Had he been advised then that there were grounds for seeking judicial review of the Tribunal's decision but been precluded from doing so by impecuniosity, that could easily have been indicated in the affidavit of 2 October 2003. The passage from that affidavit quoted above indicates only that the appellant made a "mistake" which he later realised. The "mistake" is not identified and it was reasonable for the learned primary Judge to comment that "the applicant does not say that he received no legal or other relevant advice from a knowledgeable source after the Tribunal's decision nor, if he did not, why." It was also, we consider, eminently open to his Honour to characterise the appellant's delay, as he did in the passage quoted at [8] above, as "poorly" or "unsatisfactorily" explained. 12 Mr Silva, who appeared as solicitor for the appellant on the hearing of the appeal also contended that the learned primary Judge had erred in exercising the discretion without reaching a final conclusion on the substantive merits of the case for the grant of a protection visa. He referred in support of this argument to these observations of Heerey J in VQAN v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 (19 December 2003); '21 Goldberg J [in M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146] did not proceed on the basis that delay could be the sole consideration in exercising the discretion to refuse relief. His Honour in fact considered the merits of the proposed application at some length: see [24]-[34]. 22 I conclude therefore that it would not be a proper exercise of discretion to completely ignore the applicant's prospects of success. This was not in fact done in the cases relied upon by counsel for the Minister. Moreover, his argument seems to be, practically speaking, inconsistent with the course adopted by the Full Court in Ngu. 23 If, as I therefore hold, the substantive merits must be considered, two approaches are possible. The substantive arguability might be considered as part of a balancing exercise, so that the longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits. Alternatively, the court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of jurisdictional error is made out, then consider whether relief should be refused because of delay or other discretionary factors. This question was not argued. It is not necessary to express a conclusion because in the view I take the same ultimate result would be reached whichever approach were adopted. I would express a tentative preference for the latter, which seems more consistent with the reasoning of Gaudron and Gummow JJ in Aala at [54] et seq.' 13 However, we do not understand Heerey J in that passage to have done more than express a preference for one of two judicial approaches. He clearly did not go so far as to say that it was legally impermissible to reach only a provisional view about the applicant's prospects of success on the substantive merits and then take that provisional view into account in exercising the discretion. Moreover, the learned primary Judge in the present case was precluded from reaching a concluded view on the substantive merits because the circumstances which the appellant claimed constituted the denial of procedural fairness discussed below meant that matters which might have tended in favour of acceptance of the appellant's case were not before the Tribunal or the Court. It is clear that his Honour evaluated separately from the exercise of the discretion to extend time the appellant's claim that the Tribunal denied him procedural fairness. 14 For these reasons we are not persuaded that the learned primary Judge acted upon a wrong principle, allowed himself to be affected by irrelevant matters or failed to take into account some relevant consideration so that his discretion miscarried in the way explained, eg, in House v The King (1936) 55 CLR 499 at 504-505. Was there a denial of procedural fairness? 15 Notwithstanding his conclusion as to the exercise of discretion, his Honour went on to consider the appellant's contention that he had been denied procedural fairness. For that contention to be understood it is necessary to reproduce this extract from the reasons at first instance: '4 On 12 March 1998 the Tribunal wrote to the applicant indicating that all the papers relating to his application had been considered but that it could not make a favourable decision on that information alone. The applicant was invited to give oral evidence. His then advisor told the Tribunal that the applicant did not wish to do that but would like the Tribunal to proceed to make a decision 'on the papers'. However, the adviser also foreshadowed a further written submission by the applicant, which was received by the Tribunal on 27 March 1998. The submission included a number of documents – letters purportedly from officials of the political party and from an advocate warning the applicant against return to Bangladesh, and police and court documents indicating that the applicant faces charges in Bangladesh. One such document indicates that 'an FIR' (apparently an abbreviation for 'first information report') had issued, naming the applicant as having been involved in a demonstration on 23 April 1997. 5 The Tribunal proceeded to determine the matter, as the Tribunal Member said, 'on the evidence available to the Tribunal, that is the Department's and Tribunal's files relating to the application and information which the Tribunal has obtained from independent sources about matters referred to in the application'. 6 The Tribunal noted, among other things, that: · the applicant claimed to have been working full time for his political party in 1993 and 1994 when he would only have turned 15 in 1993; · on the applicant's claims, he would have been, during those years, 'simultaneously working full time for [his alleged party], working for an employer in Dhaka and studying in Chittagong'. Not surprisingly, the Tribunal Member considered this to be implausible; and · there was a long delay in his leaving Bangladesh after he obtained a passport and a longer delay in alleging refugee status in Australia, matters that "suggest he did not have a fear of persecution in relation to Bangladesh".' 16 As just recited, the learned primary Judge noted that the Tribunal in its reasons had recorded that, among the documents provided by the appellant in support of his claim, was one indicating that an FIR had issued naming the appellant as a participant in a demonstration on 23 April 1997. The Tribunal in its reasons continued: '….. I noted that on that date the applicant had been in Australia for some three months. The independent evidence, which I accept, indicates that there is a very high level of document fraud in Bangladesh, with lawyers being prepared to provide, for a fee, a letter advising that it is unsafe to return to Bangladesh. Had the applicant attended the hearing, I would have asked for his comments about the independent evidence, and would have questioned him in some detail about the documents and their contents. … Although the applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it, he has not given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. This means that I am unable, on the evidence before me, to assess the nature and extent of any harm the applicant suffered in the past or might suffer in the future. I therefore cannot be satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.' 17 The appellant relied on two grounds in support of his application to the High Court for the issue of prerogative writs. The first was: '1. The Tribunal did not put to the applicant that it considered some of the documents to be not genuine before making the decision.' By way of particulars of that ground, it was indicated that, after his adviser had notified the Tribunal on 26 March 1998 that he would not be attending the oral hearing proposed for 31 March 1998, the appellant, on 27 March 1998, had provided the Tribunal with "9 vital documents". According to the appellant, the Tribunal did not subsequently notify him that it regarded any of those documents, and especially the FIR, as fraudulent and gave him no opportunity to respond to that suggestion. 18 The second ground of the application to the High Court for an order nisi was in these terms: '2. The Tribunal used critical adverse country information obtained after the delegate's decision which was not provided to the Applicant before the date of the hearing or at least before the decision. The Tribunal knew that there will not be a hearing as [the] applicant was not attending a hearing.' Against that background the learned primary Judge concluded that the appellant "had effectively indicated to the Tribunal that he wished to stand or fall by the written submission and material he had provided to the Tribunal in the face of the offer by the Tribunal to receive oral evidence from him." After characterising that decision as extraordinary his Honour noted that, as the evidence stood, it had been taken on legal advice which appeared to have been plainly negligent so that the appellant, if he had proceeded in good faith, would have a remedy against the lawyer concerned. His Honour then continued: 'In any case, the applicant's decision, whether well-advised or not, was not to put himself in a position where he could conveniently attend to any concerns still felt by the Tribunal and respond quickly and conveniently to any question the Tribunal might have of him. The Tribunal had a duty to give the applicant a reasonable opportunity in all the circumstances. I do not think that the Tribunal Member was obliged to delay her determination until after she had written to the applicant specifically telling him what her concerns were, including in relation to his documentation. The Tribunal was entitled to consider that the applicant and his advisors considered that his interests were best served by his not attending. The Tribunal Member was not obliged to point out to him the difficulties that that might cause him (assuming he were a credible person), particularly as these would be obvious to any competent advisor. Nothing is shown to indicate that the Tribunal should have had any view other than that the applicant's solicitors were competent. Depending on their view of their client's credibility and instructions, the advice they gave him to stay away may indeed have been competently given and in his best interests.' 19 It was next held in the reasons below that, in light of his rejection of an opportunity to attend at an oral hearing, the Tribunal was not obliged to warn the appellant of its concerns about the authenticity of his documents. Moreover, his Honour went on to observe: '26 …… Further, it is not shown that the 'independent evidence' of a high level of document fraud in Bangladesh was not in the material that was before the delegate and therefore available to the applicant. Thus, the applicant has not shown that he was not on notice, in a general way, that there was material before the Tribunal that might reasonably move it to view his documentary materials with suspicion. So far as is known to me from what is in evidence, the applicant had a reasonable opportunity to explain that his documents were not attended by any fraud.' 20 The contention that the Tribunal had relied on "critical adverse country information" obtained after the hearing before the delegate of the Minister, and of which the appellant was given no notice was found not to be borne out by the evidence. In any event, the Tribunal's presumptive reliance on any such new material could not, his Honour considered, have occasioned any "practical injustice" to the appellant,. The concept of "practical injustice", it was noted, had been articulated in Re Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502. From there it could be traced to earlier High Court authority which tended to confine it to the requirement for a decision-maker to bring to the attention of a person affected the critical issue, factor or consideration personal to the applicant on the basis of information obtained from another source on which the administrative decision was likely to turn. Understanding the concept in that way, his Honour concluded: '30 In relation to any later material than that before the delegate relied on by the Tribunal Member, it is not shown that it was any different in effect from that before the delegate nor that it was adverse to the applicants. Nor is it shown that it involved any "consideration personal to the applicant", in the relevant sense. 31 In my view, in the particular circumstances, the applicant has not demonstrated that he was not accorded due procedural fairness.' 21 The appellant's attack on the dismissal of his complaint that he had been denied procedural fairness was reformulated by leave granted at the commencement of the hearing of the appeal to constitute the following single ground: '2(a) His Honour the primary Judge erred in holding that the Tribunal did not make jurisdictional error in how it dealt with the issue of fraudulent documents.' Of that amended ground two particulars were given: '(i) His Honour held that the Applicant was provided reasonable opportunity to explain that his documents were not attended by any fraud. '(ii) His Honour held that the applicant was on notice about document fraud in Bangladesh.' 22 As developed in the course of the oral argument on the appeal, the appellant's submission sought to erect a special procedural requirement that was said to apply to every case in which the Tribunal doubts the authenticity of documents submitted by an applicant in support of his or her case. That requirement was to the effect that, if the Tribunal suspects that a document relied on by an applicant is, or may be, "fraudulent", it is bound to notify the applicant of its suspicions and give him or her an opportunity to dispel them before a decision is made on the application. We are not persuaded that any such special requirement arose by implication from the statutory provisions in force when the Tribunal considered the appellant's application. The substantive issue raised by the appellant is whether the Tribunal failed to afford him the opportunity to address the information upon which it relied in not being satisfied that the documents he provided were probative of the claims he was making to the Tribunal. 23 The information which influenced the Tribunal not to attach to the appellant's nine documents the probative value which he desired was in two forms. The first was "country information" which the Tribunal described as indicating "that there is a very high level of document fraud in Bangladesh, with lawyers being prepared to provide for a fee, a letter advising that it is unsafe to return to Bangladesh." The second piece of information which led the Tribunal to entertain doubts about the authenticity of the appellant's documents was related to the inconsistency between the assertion in the FIR that the appellant had participated in a demonstration in Bangladesh on 27 April 1997 and the fact that, on that date, the appellant had been in Australia for some three months. 24 The appellant's contentions on the appeal about this inconsistency highlight the risk of the forensic choice which he or his advisers made when declining the Tribunal's invitation to attend an oral hearing. As we understand it, the appellant accepts that he was in Australia on 23 April 1997. However, he points to what he claims is the erroneous accusation in the FIR that he was one of six named persons involved with 50 or 60 other unknown persons in contraventions of specified statutory provisions including s 5(B) of the Explosive Substance Act as bearing out an assertion in his statutory declaration of 27 March 1998 which accompanied the nine documents lodged with the Tribunal on that date. That assertion was "Beside, they [the administration in Bangladesh working in favour of the Awami League] have implicated a number of false cases." Apparently, the suggestion that the appellant contends he would have made, had he been confronted by the Tribunal with the inconsistency between the allegation in the FIR and his presence in Australia on 23 April 1997, was that it was an illustration of the authorities having implicated him in a "false case". Understandably, that suggestion did not leap unassisted to the mind of the Tribunal or the primary Judge. His Honour was therefore justified in observing, at [26] of his reasons: 'But here the applicant had, in effect, signified to the Tribunal that whatever might be the Tribunal's concerns about any of his material, he did not wish to give evidence or to attend. The applicant cannot complain if the Tribunal proceeded accordingly.' 25 In any event, whether an applicant has been accorded procedural fairness is not to be decided on a minute or fragmented examination of each step of the process by which a tribunal has arrived at its decision. In the present case, the appellant was fully aware that the success of his application depended on an affirmative finding that he had a well-founded fear of persecution for a Convention reason if he were returned to Bangladesh. He was given an invitation to attend a hearing before the Tribunal which, apparently on advice, he deliberately declined. Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them. Conversely, his conduct left it open to the Tribunal to infer that, had he attended a hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa. In our view, the duty of the Tribunal, in the circumstances of this case, was no higher than that identified in these terms by the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [33]; 'The Tribunal must give the appellant an opportunity to appear before it and give evidence: s 425 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per von Doussa J); Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288 at [29]-[30] per O'Connor, Tamberlin and Mansfield JJ.' 26 The Full Court also observed at [46]: 'There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.' In our view, the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity. 27 It has to be borne in mind in this context that the Tribunal did not in terms find that one or more of the appellant's documents were "fraudulent." It indicated in the passages quoted at [16] of these reasons only that, having regard to the country information about the prevalence of document fraud affecting applicants from Bangladesh, it was unable, without the appellant's oral testimony, to give his documents the probative effect which he desired. The appellant must have been aware that the success of his application depended on the acceptance of at least some of the documents as genuine. As explained above, once the appellant declined to appear before the Tribunal, it was not incumbent on it to bring to the notice of the appellant each matter which caused it to have reservations about the authenticity or truth of the contents of a particular document. The critical issue for the appellant was the genuineness and probative effect of his own documents on which depended his claim for a well-founded fear of persecution for a Convention reason. On that issue the Tribunal was entitled to treat him as having elected to rely solely on the documents without the support of oral testimony or submissions. Conclusion 28 For the reasons which we have endeavoured to explain the appellant has failed to sustain either of his attacks on the conclusions of the learned primary Judge. The appeal must therefore be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate: Dated: 5 November 2004 Counsel for the Appellant: Mr T Silva appeared for the Appellant Solicitors for the Appellant: Silva Solicitors Counsel for the Respondents: Mr T Reilly Solicitors for the Respondents: Spark Helmore Date of Hearing: 2 November 2004 Date of Judgment: 5 November 2004