S 442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240

FEDERAL COURT OF AUSTRALIA

S 442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240 S442/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 356 of 2003 ALLSOP J 28 OCTOBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 356 of 2003

BETWEEN: S 442/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 28 OCTOBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an order nisi be dismissed. 2. The applicant pay the respondent's costs. 3. The time for filing any application for leave to appeal be extended up to and including, but no later than, Friday 21 November. 4. If the applicant files an application for leave to appeal within the time specified in 3 above and it be the case that, contrary to the Minister's submissions, a notice of appeal is required, the application for leave to appeal stand as a notice of appeal. 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 N 356 of 2003

BETWEEN: S 442/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 28 OCTOBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The matter before me is an application for an order nisi remitted to this Court by Gaudron J on 6 February 2003. The history of the matter is broadly outlined in the 10 paragraph affidavit of the applicant in the High Court of Australia. It is appropriate that I set out that history prior to dealing with the application for an adjournment which was renewed today after it was rejected yesterday subject to a brief adjournment to 2.15 pm today for reasons to which I will come. 2 The applicant is a Tamil citizen of Sri Lanka. 3 On 5 November 1998, he applied to the respondent Minister's Department for the grant of a protection visa. In November 1998, a delegate of the Minister refused the application. An application for review to the Refugee Review Tribunal (the Tribunal) for review of that decision was made in December 1998. 4 Three years later, in November 2001, the Tribunal made a decision to affirm the decision of the delegate which was handed down on 16 December 2001. The applicant then applied to the Federal Court of Australia for review of that decision. That application was made on 15 January 2002. 5 The application, as was necessary after October 2001, was made under s 39B of the Judiciary Act 1903 (Cth). More particularly, the application was made relevantly under subs (1) of that section. It should be noted that a writ of certiorariwas also sought, and arguably, the Court had power to grant any such order in the accrued jurisdiction or alternatively the associated jurisdiction of the Court. The orders sought were for a writ of certiorari,a writ of prohibition, a writ of mandamus, and an order as to costs. 6 That application was supported by an affidavit of the solicitor for the applicant. That matter was heard before Wilcox J, and orders were made on 23 May 2002 dismissing the application. The application was heard by his Honour in the context of s 474 of the Migration Act 1958 (Cth) (the privative clause). His Honour, however, did not approach the matter by first examining the effect of the privative clause. His Honour looked at the application and sought to ascertain whether or not there was any relevant jurisdictional error. 7 His Honour was unable to identify any such jurisdictional error and thereby dismissed the application. An appeal was filed in relation to those orders. On 23 November 2002, the Court made orders by consent that the appeal be dismissed and the appellant pay the respondent's costs agreed in the sum of $1,420. Shortly thereafter, on 2 December 2002, the applicant filed an application for constitutional writs and for a writ of certiorari and an injunction in the High Court relying upon s 75(v) of the Constitution, and the Judiciary Act in relation to certiorari. 8 The terms of s 75(v) are relevantly, for present purposes, identical to the terms of s 39B(1) of the Judiciary Act. The claim for a writ of certiorari was equally identical to the claim for certiorari in the Federal Court. There was a claim for an injunction in the High Court proceedings, a claim not apparently expressly made in the application to the Federal Court. However, that claim was in a sense, bound up with the claim for prohibition in the Federal Court and in any event it is a claim which, if it were to be brought, could have been made in the Federal Court proceedings pursuant to the terms of s 39B(1). 9 Thus, in terms of structure, the claims in the High Court were identical to the claims made in the Federal Court. The application in the High Court did not descend to any particularity. Subparagraphs (a), (b), (c) and (d) identifying the grounds of the claim were as follows: (a) The Respondent did not have jurisdiction to make the decision because the decision involved an error being the failure on the part of the Tribunal to take relevant matters into account in making the decision, being the claims made by the Applicant as to why they had a well founded fear of persecution on the continuing situation in Sri Lanka and the impact of that situation upon him. (b) The Respondent did not have jurisdiction to make the decision because the decision involved an error, because the Tribunal took into account irrelevant matters in determining the application. (c) The Respondent did not have jurisdiction to make the decision because the decision involved an error being the failure by the Tribunal to recognise that the question before it was whether it was satisfied that the Prosecutor/Applicant had a well founded fear of persecution and how the Sri Lankan Security Authorities were malignant and vindictive and operated against people of Tamil ethnicity on ethnic and political grounds rather than for reasons of order or law. (d) The Respondent failed to determine the application for review according to law in that the Tribunal misconstrued the test of a real chance of persecution provided in the Refugee's Convention in that the Tribunal decisions was predicated upon the approach and out of its preconception which was unreasonable on the material before it. 10 This matter came before Emmett J on 21 May 2003. Orders were made on that date. They included that the respondent prepare another bundle of relevant documents, and that the applicant file and serve an amended application. No amended application has been filed. There was an order that the applicant file any evidence upon which he proposed to rely by 17 July 2003. No further evidence was filed. The applicant was ordered to file and serve an outline of submissions on or before five clear working days prior to the hearing date. No hearing date was set by his Honour. 11 When the matter was before me yesterday, it was plain from the evidence that the applicant had sought the assistance of the Bar Association on two occasions in May 2003. I will come back to that matter in due course. 12 The matter had been listed for directions before me by letter from my associate to the parties dated 28 July 2003. The matter was called on for directions before me on the listed date, 1 August. The applicant appeared in person and Mr Grimm, a solicitor from Blake Dawson and Waldron, appeared for the respondent. 13 On 1 August, I set the matter down for hearing at 10.15 am, yesterday morning, 27 October 2003. No submissions were filed by the applicant in accordance with Emmett J's earlier direction that they be filed by Friday, 17 October, nor were they filed at any time prior to 27 October 2003. The respondent filed detailed written submissions for which I am grateful. Yesterday, when the matter came on for hearing, the applicant made an application for an adjournment. I refused that application for the brief reasons which I gave yesterday. I will recapitulate those reasons for the assistance of any reader. 14 Evidence was given by the applicant that he had sought legal advice in May 2003 that had not been forthcoming and that, in the last few weeks, he once again applied to the Bar Association through telephone calls to officers of the Association. The evidence which the applicant gave yesterday was less than coherent about these matters, however, that may be partly a result of the quality of the interpreting under which the applicant and the Court suffered yesterday, about which I will say somewhat more in due course. 15 However, there was no coherent explanation as to whether or not there was any real prospect of obtaining legal assistance to appear. There was no evidence before me yesterday and there is no evidence before me today that any real and timely effort has been made to obtain legal advice since 1 August 2003 when I set this matter down. The applicant appears to have the view that all he need do is tell me that he is not ready and the Minister must yet again brief counsel for the day of the applicant's choosing, when he is ready. Orders were made for the preparation of this case by Emmett J in May. They have not been complied with. 16 An attempt was made in May for legal assistance. None has been forthcoming. I set this matter down for hearing over 2 months ago. There was ample time for the applicant to obtain legal advice. Today he renewed his application for an adjournment. He made statements from the bar table which, unless Mr Bromwich objects, I will take as evidence that he has been unwell, that he is not in a position to proceed, that he burnt his hand on a heater, that he had a fall and injured his right buttock, that he was admitted to hospital between 13 and 16 August and, that all his documents were in two cars which were lost after he had been thrown out of his abode by a sheriff. 17 In the last 2 weeks the applicant said that he has not been well enough to do legal procedures and he told Mr Grimm of this matter. The applicant tendered a medical certificate from a medical practitioner indicating that he had suffered burns, a fall, had right leg pain, haematoma, hip and leg problems and had been admitted to Blacktown Hospital and Auburn Hospital and that he was unfit for work from 10 August 2003 to 3 October 2003. Nothing in the certificate indicates why the applicant, with a sore leg or sore hand, could not bring together what he wanted to say about the Refugee Review Tribunal decision. 18 Further, nothing in the medical certificate or what the applicant said from the bar table explains why there has been, since 1 August, no apparent timely attempt to obtain legal advice. In the circumstances of the issues that I will adumbrate and set out in the balance of this judgment it is, in my view, unlikely that a practitioner would have very much to say in relation to the application. While I am acutely aware that the applicant is unrepresented, matters of this kind simply do not get adjourned because the applicant, who has had two and a half months since the matter was set down for hearing to prepare the case, says on the day that he is unable to present any arguments because he has not prepared them. 19 This applicant was apparently ill and injured to some degree, though on the evidence in no respect to a degree disabling him from collecting his thoughts and preparing to say what he wanted to say about the Tribunal decision. The evidence is plain that he has made in recent times a less than timely and thorough attempt to obtain legal advice and representation. The Minister has now briefed Mr Bromwich on 2 days, yesterday and today. The Minister has paid for Mr Grimm to come to directions hearings. No doubt the prospect of recovery of any of these costs is fairly remote. 20 While small in the overall Commonwealth budget I am simply not prepared, in the light of the explanation given and of the evidence given, to adjourn this case. I see no purpose in adjourning it and no proper basis has been made out for adjourning it. If I thought there was any proper basis for the application to succeed I may consider further the question of the adjournment, notwithstanding the wholly inadequate evidence put forward in support of it. However, given the matters that I am about to deal with, I see nothing but further waste of public funds in adjourning this matter. 21 Therefore, for those reasons, and with that background, I turn to the substance of the case. I should add that after numerous attempts between 2.15 pm and 3.15 pm today, I was unable to extract from the applicant any submissions in support of his application for an order nisi, on the basis or assumption that the adjournment application was refused. 22 Mr Bromwich has carefully and fully set out in his written submissions the factual background to this matter and the claims of the applicant and the reasons of the Tribunal for their rejection. I will come to those matters in a moment. 23 A more important matter arises however, which is of a character and a nature, which leads me to conclude that there is simply no arguable case for the application for the orders under s 75(v) of the Constitution. In the decision of Merkel J in Somanader v The Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, his Honour, if I may respectfully say so, in a careful and reasoned judgment, expressed the view that principles of res judicata, estoppel and like principles, including the principles reflected in Henderson v Henderson (1843) 67 ER 313and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, were applicable in administrative law cases of this kind. His Honour's views were followed by Heerey J in Re Ruddock; Ex parte LX [2003] FCA 561. 24 It is appropriate that I follow those decisions. They rest in part upon the proposition that s 75(v) of the Constitution does not confer substantive rights on the applicant, but rather is a constitutionally entrenched jurisdiction, ensuring that complaints against officers of the Commonwealth can be ventilated by the remedies there provided for. 25 Section 39B(1) provides in statutory form the very same relief. The applicant availed himself of that identical relief. His appeal was dismissed. His affidavit in the High Court indicates that he did that on legal advice. That is of no moment in assessing the consequences of the dismissal of the appeal. 26 The application for the writs of certiorari, mandamus and prohibition have been dealt with. They were dealt with on their merits by a Judge of this court. The appeal was dismissed by consent. The application for an injunction could have been made and if it were to be made, should have been made in the application before the Federal Court. 27 There is no reason to conclude otherwise than that the application under s 75(v) of the Constitution is a simple re-running of the issues before the Federal Court. Even if different arguments were desired to be put, they could only be arguments which should have been put, if they were to be put, in the proceedings before the Federal Court under s 39B. It is essential for any success in the s 75(v) application for jurisdictional error to be shown just as it is essential for the application under s 39B of the Judiciary Act for jurisdictional error to be shown. 28 The court in this case has not been favoured with any particulars whatsoever of what the alleged jurisdictional errors are. 29 In those circumstances, there is no arguable case beyond one which would not be estopped and prevented from proceeding as in effect an abuse of process. Whether one expresses the matter in terms of Henderson v Henderson, res judicata or an abuse of process, these proceedings have been heard and lost. 30 I would also conclude on the material before me that there is no reasonable prospect and no reasonably arguable case for an order nisi. 31 The applicant, having arrived in Australia, claimed to be a refugee upon all five Convention grounds. The essence, however, of his claims related to race and political opinion. He is a Tamil. The applicant claimed to have been active in student politics and to have acted, amongst other things, in a play that was critical of the treatment of Tamils, resulting in arrest, assault and torture by the authorities. 32 The applicant claimed to have been approached by the Tamil Tigers, when he was a pharmacist, to obtain medication and had his stock taken. He claimed to have run a boarding house for Tamils which had resulted in suspicion of his association with the Tamil Tigers on the part of the authorities. He claimed to have been subjected to demands for money from the Tamil Tigers and he claims to have been assaulted by the authorities for passing information to the Red Cross and to the media. 33 The detail of the claims of the applicant are found in his statement which was before the delegate and the Tribunal. The Tribunal, in affirming the decision of the delegate was not satisfied that he had a well-founded fear of persecution for a Convention reason. Unfortunately for the applicant the Tribunal comprehensively rejected the applicant's claims and his credibility. It disbelieved him. I should add at this point, that it is not my function to concur in that view of the Tribunal, subject to appropriate legal review of the kind contemplated by s 39B(1) of the Judiciary Act, the fact finding of that character is a matter for the Tribunal. Within its reasons the Tribunal described the applicant as "vague and inconsistent when giving evidence". 34 The Tribunal did not accept the applicant as a witness of truth. The Tribunal did accept that the applicant would have been arrested if the authorities had evidence he knowingly harboured Tamil Tiger members, but noted the applicant denied doing this and the Tribunal did not accept there was any reason for a case to be fabricated against him. The Tribunal did not accept that the applicant had been arrested and detained for two weeks, because he had staged a play in the Tamil language in 1983 nor, that he had been arrested five times between 1987 and 1990 for accompanying relatives from Mannar or Jaffna. 35 The Tribunal did not accept that the applicant would have been arrested 15 times between 1990 and 1997 for being a lodge keeper, or that the authorities would have a reason to fabricate a case against him for association with the Tamil Tigers. The Tribunal regarded the claims of repeated arrest as a fabrication and did not accept that the applicant had ever been arrested. The Tribunal did not accept that the applicant or his father had any detailed information to provide to the Red Cross or foreign media, or that the authorities had any reason to fabricate a case against them in relation to such conduct. 36 The Tribunal did not accept that the Tamil Tigers approached the applicant or his father for assistance, or that they came to know and trust the applicant's family, or that the applicant and his family had assisted the Tamil Tigers, or that the applicant or his family had ever had any contact with the Tamil Tigers, or that the pharmacy where the applicant worked had ever been robbed by the Tamil Tigers. The Tribunal did not accept the fact that the applicant, having applied for refugee status, would come to the notice of the authorities, but even if it did, the Tribunal did not accept that the applicant would have a well-founded fear of persecution on that ground. 37 The Tribunal did not accept that the applicant had ever been of interest to the authorities and that claims made at the hearing, of the arrest of his brother, and that his sister had been approached by the police, were fabrications. The applicant's application to this Court under s 39B, as I said earlier, was supported by an affidavit of a solicitor. No particular detail of the errors was set out in that affidavit. There was an assertion of exceeding jurisdiction and constructively failing to exercise a jurisdiction. 38 This application was heard and determined, as I said earlier, by Wilcox J on 23 May 2002. As I said earlier, his Honour did not resort to s 474 of the Migration Act. His Honour considered grounds beyond those expressly set out in the application for review in the solicitor's affidavit, including allegations of a failure to deal with the substance of the applicant's claims, interpreting errors, bias, want of bona fides and found nothing more than errors in logic or expression. 39 The applicant has not assisted me today with any further submissions on the alleged errors of the Tribunal and I am unable to identify for myself from reading the Tribunal decision, assisted by the learned primary judge's decision on 23 May 2002, as to whether there are, or could be, any jurisdictional errors. This of course is said, leaving to one side the question of Anshun which I dealt with earlier. 40 Turning to the assertions of error of a jurisdictional kind in the draft order nisi, the four grounds of which I have earlier set out, the following needs to be said. Ground (a) alleges a failure to take into account relevant matters. 41 It is clear in my view from reading the Tribunal's decision, that the Tribunal understood the basis of the applicant's claim, rejected certain evidence, disbelieved the applicant and I can find no mandatory consideration of the kind referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, which was overlooked. On the material before me, I see no foundation whatsoever for subparagraph (a). 42 As to ground (b), this alleges taking into account irrelevant considerations, but does not suggest what those irrelevant considerations might be. From a reading of the Tribunal's decision, assisted by an examination of the material in the relevant documents, and assisted further by reading Wilcox J's reasons, I am unable to ascertain any basis whatsoever for the assertion that irrelevant considerations were taken into account. 43 Turning to ground (c), this alleges a lack of jurisdiction because of a failure to recognise that the question before the Tribunal was whether the applicant had a well-founded fear of persecution. It makes reference to the Sri Lankan authorities being motivated to behave in a malignant and vindictive manner against Tamils on ethnic and political grounds. From reading the Tribunal's reasons and the papers in the relevant documents, it is plain that the Tribunal understood properly the task before it and the complaint appears to be one that the factual matters put forward by the applicant were not accepted. 44 I see no reason to conclude from the reasons of the Tribunal that it misdirected itself as to the proper question, or that it engaged in a body of conduct directed to some improper question, or task. On the material before me I see no basis whatsoever for Ground (c). 45 Ground (d) is less than easy to understand. It does appear to allege that the real chance of persecution test was not followed, or was somehow misconstrued. This may be an attempt by the apparent lawyer, drafter of this paragraph, to encapsulate the sorts of considerations referred to by the High Court in the decision of Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59. It is not clear. 46 Assuming that it is an assertion that in some fashion the Tribunal misconstrued its task, or acted so unreasonably as to reflect a failure to appreciate the proper task before it, I reject both assertions. There is no foundation whatsoever for either. On the material before me and, in particular, reading the terms of the Tribunal decision, whilst there were findings of fact which may or may not have been controversial to those involved in the hearing before it, I see no basis upon which a Court can conclude that the approach was so unreasonable as to betray legal error. 47 None of the grounds as set out in the draft order nisi do other than assert conclusions. None sets out any basis for me to doubt the correctness of the conclusion otherwise drawn by Wilcox J that there was no basis for review under section 39B(1). There is no basis for me, in my view, to conclude that there was any jurisdictional error of the kind required by s 75(v) shown by the Tribunal in these circumstances. 48 I have made various references to the relevant documents. I marked the relevant documents as exhibit A in the proceedings. I should add, that yesterday some evidence was given by the applicant that he provided his relevant documents in these proceedings to someone at the Bar Association, or a barrister and he does not have them. That was put forward, as I understand it, to support his proposition that he was reasonably unable to proceed yesterday or today. However, the applicant has in his possession a set of relevant documents before Wilcox J and, as was made plain to him yesterday, those relevant documents are the very identical relevant documents made available to me now being exhibit A. They were simply re-numbered from Applicant NAAU of 2002 to Applicant S442 of 2002. 49 In all the circumstances, I see no basis whatsoever to conclude that there was an arguable case for jurisdictional error being shown by the Tribunal so as to warrant the issue of an order nisi by this Court, let alone for the making of any order under the constitutional writs provided for by s 75(v). As can be seen from the above, there is much to be said against the making of any order. In the absence of any evidence that some legal adviser has identified some material which Wilcox J, Mr Bromwich, or myself has been unable to bring forward, I am not prepared to conclude that there is any purpose whatsoever in adjourning these proceedings. 50 As I said earlier, that is compounded by the fact that no factual basis of any reasonable kind has been put forward as to why the Minister should throw away two days' costs so that the applicant might, in his own time, get around to preparing this case. He has had plenty of time and, as I said earlier, there are simply no grounds for an adjournment. 51 I wish to add one further matter. It is both distressing and troubling to have to raise it publicly. May I begin by saying that I intend no personal criticism of the two gentlemen involved, one of whom is present in Court today. 52 The applicant speaks some English. That much is evident from what has transpired in the last 2 days. However, his native tongue is not English. He needs a Tamil interpreter. The Court, through an entirely inadequate allocation, pays for these interpreters. That comment is not made as a criticism of the Minister or the Government, it is simply a matter of historical funding. Nevertheless, the provision of interpreters in cases such as this, is essential. The Court must be confident that even the disappointed litigant has been in a position to understand what is happening. 53 I would have dealt with this case yesterday morning after it was called on at 10.15 am. I adjourned the case to 2.15 pm today. I did that because it became evident after over an hour, that the interpreter who attended yesterday was, I am sorry to say, of a standard which if I described it as less than competent, I would be glossing over a relevant factor. He was grossly less than competent for the task in front of him. He may well have been an adequate interpreter for other functions, but he was entirely inadequate for dealing with legal proceedings. He was not accredited. He had a Medicare card. The people who provide these services to the Court must, it seems to me, be able to be better than this. I appreciate that, given the number of cases in the Court, there is a strain on resources, but if people who are competent at interpreting in Court cannot be made available, the Court should be told and it is most definitely a ground for an adjournment. 54 Today, another interpreter appeared who was also not accredited. He was by no means in the category of the gentleman yesterday, but I think it fair to say that he struggled. Again, I am not intending to be personally critical. It is unfortunate and unpleasant to have to say these things, but, having said them, I am confident that today, through such English as the applicant has and through the efforts of the interpreter for which I thank him and Mr Bromwich for which I thank him, I am confident that the applicant was aware and understands the following things: 1. that I have refused his adjournment application; 2. that I earlier refused his application and required him to proceed; 3. that fully aware of that and fully aware that I would deal with the matter, he chose not to put submissions. The applicant says he was not prepared and ready to put submissions. For the reasons I've expressed above, that is simply not good enough to obtain an adjournment on the material he put forward in the witness box yesterday and from the bar table today. 55 In all the circumstances, I dismiss the application for an order nisi. I order the applicant to pay the respondent's costs. I extend the time for filing an application for leave to appeal to a day 21 days from Friday, 31 October 2003. I have extended the period of time for leave to appeal because I will need to settle these reasons and have them posted to the applicant. 56 There may be some debate as to whether or not the appropriate way to challenge my orders is to file an application for leave to appeal or to file a notice of appeal. That is a matter about which the applicant should, if he is troubled, seek advice, but I am working on the basis and I think it is the application of Mr Bromwich, that I dismiss the application for an order nisi which the Minister respondent treats, as I understand it, as an interlocutory judgment for which leave is required. 57 Thus, if the applicant wishes to challenge my orders today, I have extended time for him until Friday 21 November 2003. He would be advised to consider what form of appeal, if he wishes to appeal, to file, however, he should understand that the Minister is of the view that he needs to file an application for leave to appeal. From what I understand of the position, prima facie, I think the Minister's view is correct. If it be the case, that is, if the application for leave was filed within time, I take it that the Minister would consider that, if a notice of appeal were required. 58 The orders, as I have said, are: 1. The application for an order nisi be dismissed. 2. The applicant pay the respondent's costs. 3. The time for filing any application for leave to appeal be extended up to and including but no later, than Friday 21 November. 4. If the applicant files an application for leave to appeal within the time specified in 3 above and it be the case that, contrary to the Minister's submissions, a notice of appeal is required, the application for leave to appeal stand as a notice of appeal. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.