Applicants M237/2002 v MIMIA & Anor [2003] FCA 1183

FEDERAL COURT OF AUSTRALIA

Applicants M237/2002 v MIMIA & Anor [2003] FCA 1183 APPLICANTS M237/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MR J VRACHNAS SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR ADOLFO GENTILE IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL V162 OF 2003 NORTH J 11 AUGUST 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V162 OF 2003

BETWEEN: APPLICANTS M237/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

AND: MR J VRACHNAS SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR ADOLFO GENTILE IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT JUDGE: NORTH

DATE OF ORDER: 11 AUGUST 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for extension of time is dismissed. 2. The applicant pay the first respondent's costs of and incidental to the application. 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 V162 OF 2003

BETWEEN: APPLICANTS M237/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

AND: MR J VRACHNAS SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR ADOLFO GENTILE IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: NORTH

DATE: 11 AUGUST 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 24 December 2002, the applicant applied to the High Court for the issue of writs of prohibition and certiorari and for an extension of time within which to bring the latter application. The applications relate to a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), made on 10 July 2000. 2 On 7 February 2003, Hayne J remitted further proceedings in the application to the Federal Court. The matter presently before me is the application for an extension of time. The time limitation for the making of an application for the issue of a writ of certiorari is contained in Order 55 Rule 17(1) of the High Court Rules which provides: '17(1) An order nisi for writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal, or of a magistrate or justices, shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law.' 3 Order 60 Rule 6(1) provides: '6(1) A Court or Justice may enlarge or abridge the time appointed by these Rules or fixed by an order of the Court or a Justice for doing an act upon such terms, if any, as the justice of the case requires.' 4 The relevant chronology of events relating to the application is as follows. The applicant in this matter is in fact two individuals, a mother (who shall be referred to as the first applicant) and daughter (the second applicant). They are nationals of Sri Lanka, of Tamil ethnicity. They arrived in Australia on 9 September 1997, and on 5 December 1997, they lodged an application for protection visas. A delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, rejected their application on 5 February 1998. 5 The applicants applied to the Tribunal for a review of the delegate's decision. The Tribunal heard the application on 21 June 2000, and affirmed the decision of the delegate on 10 July 2000. The applicants then filed an application in this court for a review of the Tribunal's decision. That application was heard by Marshall J and was dismissed on 8 June 2001. 6 On 18 June 2001, the applicants filed a notice of appeal against the judgment of Marshall J. The Full Court dismissed the appeal on 6 December 2001. On 2 January 2002, the applicants sought special leave to appeal in the High Court, but that application was discontinued on 4 July 2002. Shortly afterwards, on 30 August 2002, the applicants requested that the first respondent substitute a more favourable decision than that of the Tribunal under s 417 of the Migration Act 1958 (Cth) (the Act). 7 The first respondent rejected the application under s 417 on 12 December 2002. The applicants then applied to the High Court for the issue of writs of prohibition and certiorari. The application for certiorari was commenced almost two years outside the time limit prescribed by O 55 r 17(1) of the High Court Rules and thus a further order was sought from the High Court that, "time be enlarged to permit the prosecutors to make the present application for prerogative relief". Although not stated, this order was presumably directed to the application for certiorari as no time limit is prescribed for bringing an application for prohibition. 8 The principles to be applied to applications for the enlargement of time were set out by McHugh J in Re Commonwealth; ex parte Marks (2000) 177 ALR 491. Those principles included the following: '[1] The grant of an enlargement of time is not automatic. … [2] A "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months. … [3] It is always necessary to consider the prospects of the applicant succeeding … The explanation for such a delay is also a relevant consideration. [4] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of the parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. [5] Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed to the acts or decisions of public bodies or officials and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.' 9 A central factor for consideration in an application for an extension of time within which to make an application for review, is the prospects of success of that application if the extension is granted. To determine that issue, it is necessary to examine the merits of the application for review. 10 Although there are some cases in which the delay is so extraordinary that a case with high prospects of success would not warrant the grant of an extension of time, these cases are rare. Usually, the administration of justice is enhanced if litigants can see that their cases have been dealt with on the merits. This is more satisfactory to litigants, whatever the outcome, than if they see that their cases are decided on arguments about the effect of delay. Therefore, the present case will be considered primarily on the basis of the prospects of success of the applicants' claim for certiorari. 11 The claims made by the applicants before the Tribunal, and the evidence upon which they relied, are set out comprehensively in the judgment of the Full Court, at pars 3-8, as follows: 'In a document attached to her application for a protection visa, the first appellant [the first applicant in the present proceedings] described herself as "… a refugee on account of the of the on-going ethnic violence in Sri Lanka and also woman at risk under these conditions as I have been abandoned by my husband who now lives in Saudi Arabia". She also described herself as a victim of race riots in 1983 in which her property was burnt down. She and many of her relatives were tortured and her nephew was fatally shot. One of her uncles committed suicide because he could not bear the torture and another uncle died from heartbreak at the death of his son. All of these matters made her fearful of living in her country of birth. The first appellant's husband left her in August 1995 and went to Saudi Arabia promising to bring her and her daughter there, a promise which was never fulfilled. She and her daughter were left living alone in a flat in a predominantly Sinhalese area. Her Muslim in-laws rejected her because of her ethnicity. Her Sinhalese neighbours passed adverse comments about her ethnicity and would report her to Security Authorities and the Sri Lankan army. Several times a month, according to the first appellant, her house was checked by Sri Lankan army officers wielding guns. They would come knocking on the door in the middle of the night and search the house. On several occasions she and her daughter were taken at night to a police station and questioned about visitors. These were visitors from the north who were staying with them. She was expected to register visitors with the police. This could not be done within one night. Someone in the block of flats in which the appellants lived had called the police and told them there were Tamil Tigers in the appellant's house. On several occasions the first appellant and her visitors were locked up in the police station for days without food or water until police were satisfied that she was in the clear. On one occasion she had to spend about eleven days in a police station as one of her visitors was from Jaffna. The police suspected the first appellant of being a terrorist as well as her visitor. Only when her visitor was cleared was she released. In August 1997, according to the first appellant's statement in support of the protection visa application, police entered a Tamil home in a flat close to her and shot and killed a five year old child, accusing its parents of knowing the whereabouts of terrorists who had visited them some time previously. The police allegedly shot the child to teach the parents a lesson. The first appellant said that she needed a break from all these tensions and applied to come to Australia on a holiday to visit her sister and family until the tension in Sri Lanka ceased. A recent bombing in the city two months previously had also scared her. Her sister and husband in Australia had been trying to reconcile her failed marriage by inviting her estranged husband to come to Australia on a holiday. But reconciliation failed. The first appellant said she was left to face the consequences of returning to Sri Lanka "…and living the life as a single woman at risk and as a suspected terrorist for no fault of mine except for my ethnicity". Her application for a protection visa was said therefore to be based on a fear of persecution in Sri Lanka on account of her ethnicity and suspicion of involvement with the LTTE on account of entertaining Tamil relatives from the north. In a submission put to the Tribunal by Victoria Legal Aid on behalf of the appellants, a summary of their claims was set out. In that summary reference was made to the fear which the first appellant said she experienced as a result of the 1983 race riots in Colombo and the burning of her house by Sinhalese people. It referred also to the assassination of President Premadasa in 1993 and media speculation that the Tamil organisation, LTTE, was behind the killing. The first appellant was said to be fearful of being killed by Sinhalese at this time. Incidents in which police visited her home in 1995 were referred to. The first of those occurred when relatives from Jaffna stayed at her home. The second occurred in August 1995, at the time of her daughter's birthday. She once again had visitors from Jaffna and police searched her premises for LTTE information. She claimed to have been assaulted by security officers who kicked her and pushed her around and pointed guns at her. She complained of selective harassment and discrimination in 1996 by the management and staff of her local bank in Colombo and of her complaint to the bank manager about a security officer who swore at her and refused her entry. Police were called and she was taken to a police station where she claimed to have been verbally and physically humiliated for several hours. In March 1996, when a friend visited the first appellant from Jaffna, a Sinhalese neighbour abused her on the stairway of the flats for using Tamil language and slapped her on the face. She made a complaint to police who did nothing about the incident. She was questioned in Sinhalese and could not explain herself properly. No action was taken on her complaint. She said that abusive signs and messages were placed on and under her door about her being a Tamil and a supporter of the LTTE. On another occasion in 1996 she was taken to a police station and questioned after standing waiting for a friend outside the Colombo YWCA. At Christmas time that year, a relative from Jaffna stayed with the first appellant in Colombo. Both were subsequently arrested by police and detained for about ten days. The relative was tortured and the first appellant interrogated at gun point and denied water or food for ten days. She also claimed to have been the subject of an attempted rape by an officer in charge of security officers searching her house in September 1997 as part of a response to information that the LTTE were planning to blow up the domestic airport, Telecom and the Water Board in Colombo.' 12 The Full Court set out the findings of the Tribunal at length, at pars 9 – 17, as follows: 'The Tribunal accepted that the first appellant is a Sri Lankan national outside her country of nationality, that she is a Tamil speaking Christian and that she was born and has always lived in the Western Province of Sri Lanka, mostly in Colombo apart from a brief period she spent in Jaffna as an infant. It accepted that she was married to a Sinhalese Muslim, that the marriage broke down in 1995 and that she had recently recommenced living with her former husband, although she was not hopeful of effecting a true reconciliation. Her daughter was accepted as also being a national of Sri Lanka, outside her country of nationality. The Tribunal found that the first appellant was a victim of the 1983 communal riots, that her house had been burned down and that she had subsequently bought a house in the same neighbourhood. She went abroad several times after 1983, but each time returned to Sri Lanka. The Tribunal concluded therefore that the first appellant did not fear persecution from the authorities or her Sinhalese neighbours on the grounds of her Tamil ethnicity. It accepted, however, that her parents-in-law were unhappy with her marriage to their son and made things difficult for her and that she suffered insults from time to time on account of her ethnicity. The Tribunal considered that, having regard to the terrorist threat associated with the ongoing civil war in Sri Lanka, it was legitimate for the Sri Lankan government to impose strict security measures in the capital Colombo in order to detain terrorists and to reduce or prevent attacks on innocent civilians. Such legitimate measures included requirements for the registration of visitors. The Tribunal referred to independent country information and its conclusion in a number of other cases that Tamils are not harassed in Sri Lanka by reason of their race. Young newly arrived Tamils from the North and North East, particularly if they come from LTTE controlled areas, may be at risk of harassment because of suspected affiliation with the LTTE. Such Tamils would not generally be able to communicate in Sinhalese or explain the reasons for their presence in Colombo, without any history of connections with that city and nobody to vouch for them. The Tribunal referred to the first appellant's confrontation with a neighbour in 1996 and her subsequent complaint to the police. Although she claimed no action had been taken it was apparent from her evidence that she spoke Sinhalese and the policeman who took her statement probably only spoke that language. Although it might be the case that she had been assaulted by a neighbour her complaint was referred to a conciliation board. According to the first appellant her complaint had been dismissed for want of evidence. Neither she nor her friend gave any evidence to the police because they did not speak good Sinhalese and she was afraid. The Tribunal found that she could have interpreted for her friend but her own visits to the police station and her appearance at a conciliation process without any harm led to the conclusion that her friend had nothing to fear. The Tribunal was satisfied of the existence of some animosity between civilians of different ethnicities. However the government had implemented measures to redress frictions such as those experienced by the first appellant and her neighbour. The evidence indicated that she had been given proper protection by the authorities and the lack of any evidence of further antagonism after the conciliation conference demonstrated the effectiveness of government measures. On the bank harassment complaint, the Tribunal found that she was not mistreated by police and that the bank responded to her complaint although she initially indicated that she was unsatisfied with the response. In a letter to the Chairman of the bank on 19 February 1997, she said she was treated "honourably and with courtesy at all times". The derogatory behaviour directed at her by two bank guards partly because she was Tamil was accepted by the Tribunal. It found however, that, although insulting, such behaviour did not threaten her personal security. It was not of such a serious nature as to amount to persecution. Her complaints were addressed and eventually satisfactorily resolved as she was able to continue attending the bank without encountering insulting behaviour. The Tribunal then said: "Having regard to the resolution of her own documented difficulties in the context of other information before the Tribunal, including the Applicant's numerous returns to Sri Lanka and her return to live in a predominantly Sinhalese area (discussed below) the Tribunal is satisfied that there is a real chance she faces persecution for reason of her race, should she return to Sri Lanka." There is a typographical error in the reasons here which leaves out the word "not" in the last sentence before the words "a real chance". The Tribunal acknowledged that she may have been questioned on some other occasions but had always been released and returned to her usual residence. In respect of her claim about relatives arriving in the evening without time to register them, she conceded she had a telephone and the Tribunal was satisfied that she could have informed the police that she had unexpected visitors from Jaffna. The Tribunal found it not plausible that she would fail to notify them, particularly having regard to the problems she allegedly experienced when failing to register previous visitors. Although the Tribunal found it plausible that the first appellant was required to attend at the police station to vouch for her relatives, it was not plausible that she would be kept there for a prolonged period until a particular relative was cleared. Nor was it plausible that her daughter would be detained. The Tribunal said: "The fact that the Applicant always returned to her usual address in a predominantly Sinhalese neighbourhood suggests, along with other reasons, that she was not in fear of persecution at that location and further suggests that she has exaggerated her experiences." On the first appellant's claim that she had been detained and mistreated for several days, the Tribunal concluded that the claim was contrived or at least highly embellished. She may have attended at the police station for a brief time to vouch for relatives but was not mistreated as alleged. As for the contention that she was subjected to sexual abuse, this was not made until the hearing. She said she had previously only had assistance from males and was too embarrassed to disclose the attack. The Tribunal, however, was satisfied that she contrived the claim about the sexual attack. It was also satisfied that she had never been found to be connected with the LTTE and that there was no real chance that she would be suspected of such a connection in the reasonably foreseeable future. The Tribunal was satisfied that there was no real chance that she would face persecution in Sri Lanka on account of her Tamil race and/or real or imputed political opinions. In respect of her claim to face persecution as a "single woman at risk", the Tribunal noted that the Sri Lankan government had implemented laws to protect women against sexual abuse and was satisfied that it could provide adequate protection for women in the first appellant's situation. In that context it noted the claim by the first appellant that she had lived alone since 1992 without being sexually abused notwithstanding lewd gestures of the bank guards in 1996. The Tribunal was not satisfied that she faced a real chance of persecution as a member of a particular social group comprising "single women at risk". The Tribunal said: "The Tribunal recognises that Sri Lanka is beset by ethnic and political difficulties but does not share the view that the Applicant or her daughter might be suspected of association with the LTTE. They left the country without hindrance and the authorities had ample time and opportunity to detain and charge them prior to their departure, but did not do so. The Tribunal finds they were of no interest to the authorities when they left Sri Lanka for Australia and available information indicates there is not a real chance they would be suspected of LTTE affiliation if they return or would be persecuted for reason of their Tamil ethnicity or for any other Convention reason."' 13 The grounds upon which the applicants now seek relief by way of prohibition and certiorari are contained in the draft order sought from the High Court, as follows: '1. The decision made by the Second Respondent did not observe procedures that were required by the Act or the regulations to be observed in connection with the making of the decision. PARTICULARS The Tribunal failed to observe the procedure prescribed in s 430(1)(d) of the Act in that the Tribunal prepared a statement of reasons for its decision which failed to refer to the evidence or any other material on which a finding on a material question of fact was based, namely the finding that "the available information runs counter to the claim that landlords or people hosting their relatives in Colombo are detained until their tenants or guests are cleared of LTTE connections." 2. The Decision involved an error of law being an error involving an incorrect interpretation of the applicable law. PARTICULARS The Tribunal in construing the statutory definition of "protection obligations under the Refugees Convention as amended by the Refugees Protocol, misinterpreted the word persecuted, as was demonstrated by the Tribunal's failure to make a finding on the applicant's claim that Sri Lankan security officers assaulted the applicant by kicking her and pushing her around and pointing their guns at her during regular checks of her home from 1995."' 14 The applicants filed a number of documents in support of the application for an extension of time. A submission prepared by their previous solicitors was filed on 2 May 2003. Having regard to the factors outlined by McHugh J in Marks, that submission was patently inadequate. Following an invitation by the Court to supplement the submissions, a further submission in writing, dated 30 May 2003, was filed. 15 On 16 July 2003, the first applicant, by this time acting for herself and her daughter, filed an eight page handwritten document, together with a number of annexures, in support of the application. This was followed on 21 July 2003, by a medical report dated 21 September 2001 concerning the first applicant from Dr Theresa Russo. 16 The first respondent filed comprehensive written submissions on 30 May 2003. 17 As the first applicant appeared at the hearing unrepresented, it is appropriate that the Court consider the entirety of the material before it, including the handwritten document filed out of time by the applicants. 18 The amended submissions dated 30 May included the following passages: 'We would submit that the applicant has an arguable case for the grant of the relief sought. The Tribunal made jurisdictional error in that it failed to make a finding on the issue of assault at the applicant's home which showed that the Tribunal had not engaged in a valid review under s414 of the Act. The Tribunal had misunderstood the meaning of "persecuted" by not finding that the applicant had a well founded fear of persecution on account of her race if she returned to Sri Lanka by reference to the assaults that occurred in her home. The Tribunal also misinterpreted the definition of protection obligations by failing to consider the issue of whether the Sri Lankan government provided adequate protection for single women from sexual assaults by members of the armed forces or the police.' 19 The handwritten document filed by the applicants, dated 16 July 2003, addressed the reason for the delay. It included: 'Many months passed before I had a reply from the Minister to my appeal to him to consider my application on humanitarian grounds. Soon after I had his reply I have applied to the Court. There was no delay on my part. Had I received a reply from the Minister earlier I will not be in this difficult position now. This is outside my control. The Minister does not consider any appeal to him while the matter is in the Court.' 20 The remaining matters raised in the handwritten submission challenged the decision of the Tribunal on the basis that the Tribunal made erroneous findings of fact. For instance, it stated: 'The third incident of attempted rape did take place and the tribunal had erred in its finding it did not take place.' 21 As the remedies sought by way of constitutional writ do not lie for incorrect findings of fact, and the merits of the case cannot be considered in an application for judicial review, those arguments will not be discussed further. 22 Together, the documents filed by or on behalf of the applicants raise a number of grounds, namely, the failure by the Tribunal to observe the procedure set out in s 430(1)(d) of the Act, the failure by the Tribunal to interpret the word 'persecute' correctly, the failure by the Tribunal to make a finding in relation to the assault thereby making a jurisdictional error, and the failure by the Tribunal to interpret correctly the phrase 'protection obligations' in respect to 'single women at risk'. 23 As to the ground under s 430(1)(d) of the Act, Marshall J considered this argument in his decision, at pars 23 to 26, as follows: 'Mr Gray [counsel for the applicants] submitted that the RRT contravened s430(1)(d) of the Act by failing to refer to the evidence upon which it made a material finding of fact. The particular finding of fact was that it was not plausible that CCC [the first applicant] would be kept in detention for a prolonged period until a particular relative was cleared by the authorities. Before making that finding the RRT said: "The available information runs counter to the claim that landlords or people hosting their relatives in Colombo are detained until their tenants or guests are cleared of LTTE connections." Mr Gray contended that such a statement does not comply with s430(1)(d) of the Act which requires the RRT to: "prepare a written statement that … refers to the evidence or any other material on which the findings of fact were based." The relevant "country information" consisted of a document produced in September 1999 by an arm of the United Kingdom government entitled "Sri Lanka Assessment". The document refers to the fact that Tamil visitors to Colombo may be detained on the basis that they are suspected of LTTE affiliations. The document makes no reference to property occupiers being detained on account of hosting such Tamil visitors. Mr Gibson [counsel for the respondent] submitted that the RRT by referring to the "available information" was in effect saying that if property occupiers were being detained as well, one would expect to see that fact recorded in the United Kingdom document. I agree with that submission. I consider that the alternative submission put by Mr Gray, although superficially attractive, amounts to an attempt to discern legal error on the basis of an overly-technical approach to the way the RRT has expressed its reasons for decision. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271-272. I have dealt with this issue out of an abundance of caution lest it be said that Yusuf [Minister for Immigration and Multicultural Affairs v Yusuf] covers only the question of the availability of s430(1)(c) as a ground of review under s476(1)(a) of the Act, as distinct from s430(1)(d) of the Act.' 24 At the trial before Marshall J, the applicants were represented by experienced junior counsel under the Court's pro bono scheme. The amended notice of appeal filed on behalf of the applicants on 7 November 2001 was also drawn by experienced junior counsel acting pro bono. His Honour's decision on this issue was not the subject of appeal. In my view, his Honour was correct in holding that the reference to the country information was sufficient to support the finding made by the Tribunal. 25 The remaining grounds now raised by the applicants were argued previously before the Full Court. The grounds of appeal considered by the Full Court were summarised in its judgment, at par 19, as follows: '1. Failure by the Tribunal to observe procedures required by the Act to be observed in making its decision. The particulars of this ground included failure by the Tribunal to set out in its reasons a finding on the question whether Sri Lankan security forces assaulted the applicant during visits to her home by kicking and pushing her and pointing their guns at her ("the intimidation question"). A further particular in support of the first ground asserted failure by the Tribunal to set out in its reasons a finding on the question whether the Sri Lankan government provided adequate protection for women in the applicant's position from sexual assault by members of State agencies ("the single woman at risk question"). 2. The decision was not authorised by the Act or regulations. This ground was particularised by reference to the Tribunal's failure to conduct a valid review as required by s 414 of the Act evidenced by its failure to make a finding on "the intimidation question". 3. The decision involved an error of law being an error involving an incorrect interpretation of the applicable law. This ground was particularised by assertions that the Tribunal misinterpreted the word "persecuted" as demonstrated by its failure to make a finding on the intimidation question. It was also said to have misinterpreted the statutory definition of "protection obligations under the Refugees Convention as amended by the Refugees Protocol" as demonstrated by its failure to consider the "single woman at risk" question. 4. The decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the Tribunal. This ground was particularised, inter alia, by the contention that the Tribunal misapplied the statutory definition of "protection obligations" as demonstrated by its failure to consider the "single woman at risk" question. 5. There was no evidence or other material to justify the making of the decision. This ground is not relevant to the appeal.' 26 The Full Court rejected each of those arguments on a number of bases. In relation to the failure to make a finding in relation to the assault, the Full Court held that the finding in question had in fact been made. It said, at par 37 – 43, as follows: 'Quite apart, however, from his Honour's disposition there was the threshold question in respect of which he made no finding and that was whether the Tribunal had in fact failed to make and set out findings on the questions of "intimidation" and "single woman at risk" as asserted by the appellants. That is a threshold issue because everything else in the appeal depends upon the contention that those findings were not made or set out in the reasons. Whether the Relevant Findings of Material Fact were Made The "intimidation" question was identified by the Tribunal in that section of its reasons where it set out the appellants' case. So it said: "She claims in her written submissions that the security forces regularly attended her house after that in a search for connections to the LTTE. They would intimidate by pointing guns and kick her and push her around." In the same section of the reasons the Tribunal set out the claims that the first appellant was taken to the police station and interrogated about her visitors. The Tribunal found it to be plausible that the first appellant was required to attend at the police station to vouch for her relatives but not that she would be kept there for a long time or that her daughter would be detained. It then said: "The fact that the Applicant always returned to her usual address in a predominantly Sinhalese neighbourhood suggests, along with other reasons, that she was not in fear of persecution at that location and further suggests that she has exaggerated her experiences. If she was often abducted at gunpoint and threatened for prolonged periods with death and rape, it is implausible that she would not have used her existing passport to make arrangements to leave the country or at least move to an area where she was not surrounded by suspicious and prejudiced Sinhalese neighbours. It is not credible that she would have continued to accommodate relatives without registering them." That finding embodies a rejection of her claim of fear of persecution by intimidation. There are two arguable ways in which that composite conclusion may be analysed: 1. The intimidation claimed did not occur or had been exaggerated. 2. The intimidation, if it occurred, did not engender in the first appellant any fear of persecution. It was suggested by counsel for the appellants that the Tribunal finding involved a view that the claimed intimidation did not amount to persecution. Having formed that view by applying too stringent a test of persecution, the Tribunal, it was said, failed to make a finding about whether or not the claimed intimidation had occurred. The Tribunal had earlier enunciated the test of persecution by reference to dicta in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and referred in particular to the statement by Mason CJ that "persecution" refers to: "some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person whether individually or by a member of a group subjected to such harassment by reason of the membership of the group, amounts to persecution if done for a Convention reason." It was said that there was no mention in the Tribunal's reasons of subsequent authority on the concept of persecution which allowed for a more expansive view of it. In this respect reference was made to what McHugh J said in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 CLR 585 at [65], the Full Court's observations in Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 at [45] and those of Hely J in Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163. While no doubt there has been further elaboration and exposition of the idea of persecution, it is to be borne in mind that the Tribunal is an administrative body acting as an arm of the Executive Government. It is not required to write reasons for decision [sic] of the kind that would be expected of a court. The exposition quoted from the judgment of Mason CJ in Chan and its reference to "significant detriment or disadvantage" is quite adequate to identify necessary elements of the concept of persecution in a way that covers the immense variety of means by which persecution may be inflicted on persons by governments or others. In our opinion, neither in its general exposition of the relevant legal principles, nor in their application to the intimidation question did the Tribunal invoke an excessively stringent test for what constituted persecution. Its finding was no doubt somewhat elliptical but was sufficient to indicate that as a matter of fact it found that the first appellant was not in fear of persecution in her home and that she had exaggerated her experiences. It must be taken from this that the Tribunal found that whatever she experienced in relation to police visits to her house was not sufficient to engender in her a fear of persecution and did not amount to such. On the single woman at risk question, the Tribunal referred in particular to the first appellant's claim that in September 1997 she was taking her daughter to school when she was ordered home during a security crackdown related to an anticipated terrorist attack. As the Tribunal noted, she said she had been followed by five soldiers and the drunken officer in charge had assaulted and attempted to rape her. She had not disclosed the assault in her initial statement because her brother-in-law had helped her with it and she believed she would be dishonoured if he knew. The Tribunal's reasons then went on: "To escape the tension and threats, her sister in Australia arranged for her to visit here and to attempt to reconcile her with her husband. Her written submissions state that she did not advise people she was leaving and departed on an early morning flight. At the time she submitted her application there had been no reconciliation and the Applicant's fears of being harmed were exacerbated by the fact that she was "a single woman at risk". She reiterated that she was still single at the time of the hearing and, as mentioned above, she was not hopeful that she and former husband would reconcile, despite sharing a residence in Melbourne."' 27 The allegation that the Tribunal had misinterpreted the definition of 'protection obligations' by failing to consider the issue of whether the Sri Lankan government provided adequate protection for single women from sexual assaults by members of the armed forces or police, is the same question referred to in par 4 of the summary of the grounds of appeal before the Full Court. As to this, the Full Court said at pars 44- 47 as follows: 'The Tribunal's reasons then went on: "She fears she faces detention, rape, assault and death because she is a Tamil and a single woman at risk. Her written submissions state that 'the culture is systematically responsibility for serious abuses of women's human rights and discrimination against women which remains not only unchecked but is actually perpetrated and condoned by the State'." In its findings the Tribunal pointed out that the first appellant's claim that she was subjected to sexual abuse was not made until the hearing. It observed that she was fluent in English and had had almost three years in which to present that aspect of her claims either in writing or through a female friend. It noted also that her Australian citizen sister wrote on 14 June 2000 that she appeared to her to be traumatised when she arrived and had to undergo psychiatric counselling. However, neither the sister nor any psychiatrist or other counsellor had mentioned any incident of sexual abuse. The Tribunal said it was satisfied that she had contrived the claim that she was subjected to a sexual attack in September 1997. Further in its reasons the Tribunal said: "She claims that she faces persecution as a 'single woman at risk'. The Tribunal asked for substantiation of the claim that the Sri Lankan State perpetrates and condones the systematic abuse of women's rights and provided time for the applicant to support those claims.' The first appellant said at the time of the hearing that that aspect of her claims could not be "sourced". The Tribunal referred to the US Department of State Country Reports on Human Rights 1999 in relation to woman and noted that amendments to the Penal Code introduced in 1995 had specifically addressed sexual address and exploitation. There was a Children and Women Protection Bureau established within the police in 1994 as a response to calls for greater awareness and attention. The Tribunal did not accept that the first appellant was the victim of a sexual assault and went on to say: "The government has implemented laws to protect women against sexual abuse and the Tribunal is satisfied that it provided adequate protection for women in the applicant's situation. In that context it notes the claim that the applicant had lived alone since 1992 without being sexually abused, notwithstanding the lewd gestures of the bank guards in 1996. Of course, there is no guarantee that a sexual assault cannot occur, but the changes of such an assault being perpetrated on the applicant are remote in the context of her own history and the efforts of the government to protect woman and punish sexual assaults. The Tribunal is not satisfied that the applicant faces a real chance of persecution because she is a member of a particular social group comprising 'single woman at risk.'" It was submitted for the appellants that the Tribunal had ignored the way in which the first appellant put her case, namely that the Sri Lankan government did not provide adequate protection for single woman from assaults by members of organs of the State. In our opinion, however, the Tribunal's finding was adequate to cover the claims made by the appellants. It referred to and relied upon protective laws of general application and administrative action taken by government to set up the Children and Women Protection Bureau within the police. The Tribunal was also satisfied that the government provided adequate protection for women in the appellant's situation. In the circumstances the specific claim which is attributed to the first appellant is subsumed within the Tribunal's finding on a fair reading of it.' 28 It is, therefore, clear that all of the grounds either formally raised in the present application, or which the applicants have, one way or another, indicated might be raised in the present application, have been considered by Marshall J and/or the Full Court, and are bound to fail on their merits. On this basis, I reject the application for an extension of time, even on the assumption that there is a good explanation for the delay. 29 An alternative basis upon which the arguments raised are bound to fail, is by operation of the principles of res judicata and issue estoppel. Each of the arguments and the issues which underlie the arguments has been considered and determined between the parties in the litigation to date. Whether by operation of res judicata or issue estoppel, those grounds are no longer open to be argued. I adopt and apply the approach to res judicata and issue estoppel in this application as explained by Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677. 30 For these reasons, the application for extension of time is dismissed. 31 The first respondent has sought an order for costs from the applicants. The applicants have not raised any reason why the ordinary course that costs follow the event should not be followed. I will therefore make an order that the applicants pay the first respondent's costs of and incidental to the application. 32 On the issue of costs it should also be observed that the submissions made by the legal representatives then acting for the applicants demonstrate on their face that the case could not succeed. In such circumstances, a real question arises whether the costs of the applicants should be borne by the legal representative. 33 Whilst one can have no quarrel with lawyers who take all available points open to their client in order to protect and advance their client's rights, there may be circumstances in which a hopeless case is permitted to proceed without the applicant being properly advised as to the chances of success. Such a circumstance would make it right for the legal representatives to pay any costs ordered to be paid by their client as a result of bad advice. 34 I make no such finding at this stage in this case as the legal representatives previously acting for the applicant are not before the Court. No application has been made that they pay the costs and they have not had the opportunity to explain their position. The issue has been raised because of the consequences for the court system when it must deal with clearly hopeless cases. Such activity involves an impost on the public by the need to devote considerable judicial time and resources to cases which, on proper advice, should never have been agitated. It is hoped that these comments might stand as some guidance to legal representatives in the future that they will properly discharge their duties to their clients, and also to the Court. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.