M152 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1415

FEDERAL COURT OF AUSTRALIA

M152 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1415 APPLICANTS M152 OF 2002 v THE REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 204 of 2003 RYAN J 10 DECEMBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 204 of 2003

On remittal from the High Court of Australia

BETWEEN: APPLICANTS M152 OF 2002

Applicants

AND: THE REFUGEE REVIEW TRIBUNAL

First Respondent

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

JUDGE: RYAN J

DATE OF ORDER: 10 DECEMBER 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an extension of time in which to bring these proceedings be refused. 2. The proceedings be dismissed. 3. The applicants pay the second respondent's costs of the proceedings, such costs 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

VICTORIA DISTRICT REGISTRY V 204 of 2003

On remittal from the High Court of Australia

BETWEEN: APPLICANTS M152 OF 2002

Applicants

AND: THE REFUGEE REVIEW TRIBUNAL

First Respondent

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

JUDGE: RYAN J

DATE: 10 DECEMBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The present case has a somewhat tortuous history. The applicants, who are father and son, applied for protection visas under the Migration Act 1958 (Cth) ("the Act") on 15 November 1999. The Minister's delegate refused their application, and the Refugee Review Tribunal ("the Tribunal") affirmed that decision on review. The applicants sought review of the Tribunal's decision in this Court, and that application was refused by a single judge of this Court, Sundberg J; Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976. That decision was not appealed to a Full Court of this Court. Rather, the applicants filed a separate application in the original jurisdiction of the High Court on or about 6 September 2002, seeking remedies under s 75(v) of the Constitution. The matter was remitted to this Court from the High Court by an order made by Hayne J on 7 February 2003. 2 The application now before the Court is made under s 39B of the Judiciary Act 1903 (Cth), and seeks a writ of prohibition prohibiting the second respondent ("the Minister") from taking any action on the basis of the decision of the Tribunal in the applicants' case, a writ of certiorari quashing the decision or an order setting it aside, a declaration that the decision is invalid, an order remitting the matter to the Tribunal for determination according to law and, to the extent that may be necessary, an order for an extension of time to make the present application. 3 The facts as found by the Tribunal were summarised by Sundberg J at [2]-[7] of his reasons for decision; '2 In the visa application the father claimed he and the son left Sri Lanka due to the father's active political involvement with the United National Party (UNP). He said he had been harassed and harmed, his property damaged and son kidnapped because of that involvement. He said he feared that their lives will be endangered if they returned because they would not be protected by the police. In a detailed statement submitted to the department on 29 November 1999, the father claimed he had been actively engaged in politics as a UNP supporter since 1975. In 1977 he was instrumental in organising several UNP meetings in his constituency as a result of which he attracted new members. He was involved in a poster campaign and monitored security when speakers addressed meetings. In 1983 he was rewarded for this activity by a job with Air Lanka despite not having any relevant experience. He assisted other UNP supporters with finding work and housing. He became popular in his local area with some people, but was disliked by others. … 3 In 1992 the father provided information to the police as a result of which two men were imprisoned for scheming to cause harm to[, or assassinate,] a UNP Member [of Parliament], Lalith Athulathmudali. After the UNP was defeated in the 1994 general election the father lost many of his privileges. In 1995 he was in charge of a demonstration opposite the President's office protesting against arbitrary transfers of teachers to rural and war zones. His name was taken by the police. A few weeks later he was stopped by police and accused of parking in a non‑parking zone. He was told by a police officer that he should not cause trouble by organising demonstrations. In January 1999 the father was involved in a protest concerning the unfair allocation of new shops which disadvantaged UNP supporters and favoured People's Alliance (PA) supporters. The protest was reported in the media. His involvement in the protest resulted in threats to his life by anonymous phone callers. His car was damaged and he was stoned. Complaints to the police were not followed up. 4 In January 1999 the son came to live with the father. Until then he had lived with his mother, to whom his father is not married and from whom he is estranged. On 25 August 1999, while the father was overseas, two men visited the son and enquired about the father's whereabouts. The son told them he was overseas. They returned on 28 August with the same enquiry. After the father returned from overseas he learned that the two men he had reported on had been released. He concluded that these were the same men who had been looking for him while he was away, and that they were working for the government. He reported the visits to the police. On 14 September 1999, at about midnight, the two men returned to the house. The father hid during their visit. They caused considerable damage. He reported the matter to the police, but claimed they were reluctant to help him. 5 The father took the son out of school, moved to another suburb and used pseudonyms for their safety. On 18 September 1999 the son's mother phoned the father to say that some unknown men had inquired about the son. She called again on 28 October saying that a man had asked one of her neighbours if the son had come to Ampara, where she lived. On 31 October the son went shopping early in the morning but did not return. The father reported the disappearance to the police. The son turned up about 6am the following day saying he had been kidnapped, but had escaped when his captors went to sleep after drinking alcohol. The father decided it was unsafe to remain in Sri Lanka, and on 2 November left the country. He said he feared for his and his son's lives because of his political and social activity in Sri Lanka. 6 At the Tribunal hearing the father amplified some of his earlier claims. He said he was not a financial member of the UNP in later years, but was a very active supporter. He said a close friend had found out that some people were planning to assassinate a government member. He reported the matter to the police. The two men were charged. He thought the case was heard in the Colombo Magistrates Court. He did not know what the charge was or what sentences were given. When asked about the men's identities, he said he had never met them. He knows them as "Three Wheel Chuti" and "Patch Some". He thought they were released in 1999, and fears they will kill him if he returns because they have government backing and the police will not support him. 7 A submission from the father's adviser of 21 August 2000 states that efforts to find particulars of the two men had proved unsuccessful. In a further statement the father said he had been informed they were from Gangodawilla, near Colombo. In a submission from the adviser dated 6 September 2000 the names and criminal records of two men were provided. This information was provided under cover of a letter from a friend. The information on the convictions was as follows: "(a) the names of the two men are – (i) Hiribura Gamage Lal (ii) Kiranagamage Luckshman alias Raju alias Happawana Raju The applicant was also informed that late Mr Laith Athulathmudali did not want the incident of the attempt to assassinate to be published, but he wanted the police to punish the persons who intended to assassinate him. Subsequently, the above two men had been framed for some offences and they were later convicted and sentenced. The applicant also received the following details about the said two men: (i) Hiribura Gamage Lal Charged for stealing fire arms, attempted murder and causing fear. His case number is – GMC50906. He was remanded on 11 June 1992. He was released from prison on 28 July 1999. Further, the applicant was informed that following the arrest of Hiribura Gamage Lal in June 1992, the other suspect Kiranagamage Luckshman went into hiding and later he was arrested in November 1992. (ii) Kiranagamage Luckshman alias Raju alias Happawana Raju Charged for inhumanly committing a murder using a fire arm. (The applicant was also informed that the above murder took place in 1988 and it was an unsolved case.) He was remanded on 04 November 1992. His case number is: H/C 16/41 Imprisoned at Bussa prison He was released on 2 August 1999." 8 The Tribunal had before it country information about Sri Lanka which showed, amongst other things, that · the UNP is the largest and best organised political party in Sri Lanka, and some of the most prominent members of the community are active supporters · the other main political party is the Sri Lanka Freedom Party (SLFP) led by the current Prime Minister Bandaranaike · the current government is the PA, a left wing coalition that includes the SLFP · even in opposition the UNP continues to have political influence, holding 95 of the 225 seats in the Parliament with 41 per cent of the vote, and retains its political dominance in Colombo municipality · political violence between UNP and PA supporters at the local government level takes place around election times or in retaliation for events that occurred during election times, but the government is not supportive of violent activities by PA members or supporters against UNP members, and does not turn a blind eye to such conduct · there have been no cases of the PA government or its local officials framing UNP supporters on criminal charges, security breaches or thuggery … · claims of political harassment of UNP members and supporters should be viewed with scepticism; while there may be individual cases of political rivalries leading to violence, all parties have equal access to the law and police protection · Sri Lanka has an independent judiciary, and the government respects the people's right to approach the courts.' 4 Before the Tribunal it was of some significance that the applicant father (hereafter, for convenience, "the applicant") could only provide the nicknames of the men on whom he claims he informed for conspiring to assassinate a member of the government. 5 The applicant claims that the Tribunal failed to accord it procedural fairness, contravened s 425 or s 414, or made a decision which was unreasonable in the sense outlined in Associated Provincial Picture Houses Ltd v Wednesbury [1948] 1 KB 223, on the grounds that: (1) the Tribunal never put to the applicant for comment that it disbelieved his story for the critical reason that he had failed to give the police more than the nicknames of the two men who were, the applicant claimed, convicted after he had informed on them; (2) the Tribunal misled the applicant into believing that if he were to provide these men's names it would have sufficient material to be satisfied of his story, but, instead, rejected the further information which he supplied after the hearing on the basis that it had not been provided at hearing; (3) that, given that the applicant had provided the nicknames and very specific details concerning the two men, it would have been a simple matter for the Tribunal to confirm whether or not the two people named in the information provided after the hearing were known by the nicknames provided during the hearing, and that the Tribunal thus fell under a duty to make the necessary enquiries; and (4) that the Tribunal had failed to take evidence from, or ask questions of, the applicant's son on critical matters – indeed, that it had failed to invite him to give evidence at all – and so had failed to elicit corroborative evidence. An objection was also taken on the grounds that the Tribunal made no proper findings in respect of the applicant son. 6 The Minister, through his Counsel, Mr Horan, has drawn the Court's attention to the inapplicability of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), and the "privative clause" regime it introduced. Given that the original application to the Federal Court was made before 2 October 2001, but the application to the High Court was made after that date, the decision under review is not covered by the transitional provisions. A further issue arises as to the time limits applicable to this application. The applicants contend that the remitter does not automatically attract the Rules of the High Court limiting time. Indeed, the proposition is advanced that, as the remitter can only be to a Court which "has jurisdiction with respect to the subject matter" under s 44(1) of the Judiciary Act, this Court presumptively has jurisdiction and the issue of whether an extension of time is necessary does not arise. 7 In answer, Counsel for the Minister respondent pointed to several decisions of von Doussa J dealing with time limits on a remitter: Applicants A64/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 568, Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567 and Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576. However, it seems that in those cases the parties did not contest the applicability of time limits under the High Court Rules. It would clearly be preferable if orders remitting matters to this Court were to include directions regarding the applicable time limits governing applications under s 75(v) of the Constitution. However, in this case at least, no such order or direction was made. It would, nonetheless, be a curious result if by a mere remitter an applicant could escape the application of time limits altogether. 8 The relationship between the Federal Court Rules and the High Court Rules in respect of an extension of time on a remitted matter was discussed by a Full Court of this Court in Re Ross; Ex parte Australian Liquor, Hospitality and Miscellaneous Workers Union (2001) 108 FCR 399 at [37]-[39]: [37] The effect of O 5 r 17 of the High Court Rules is that an order nisi for a writ of certiorari is not to 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 in respect of which the writ is sought. Similarly, O 55 r 30 requires that an application for a writ of mandamus or an order in the nature of mandamus to a judicial tribunal to hear and determine a matter should be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the High Court or a justice of the High Court. Order 60 r 6 of the High Court Rules allows "A Court or Justice" to enlarge the time appointed by the High Court Rules for doing an act. By s 44 (1) of the Judiciary Act 1903 (Cth), where the High Court remits a matter to a court, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which the matter is remitted. [38] The employers contended that the application for an order nisi was made to the High Court outside the time limits laid down in O 55. It should be noted that no time limit is laid down in respect of an application for a writ of prohibition, so that so much of the application to the High Court as sought a writ of prohibition was not subject to any time limit. If it should be necessary for it to do so, the union applied for an enlargement of the time. The power of this court to extend time, found in O 3 r 3(1) of the Federal Court Rules, is limited to a power to extend any time fixed by those rules or by any judgment or order. Section 23 of the Federal Court of Australia Act 1976 (Cth) provides that this court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the court thinks appropriate. In addition, s 38 provides as follows: (1) Subject to any provision made by or under this or any other Act with respect to practice and procedure, the practice and procedure of the court shall be in accordance with Rules of Court made under this Act. (2) In so far as the provisions for the time being applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court. (3) In this section, practice and procedure includes all matters in relation to which Rules of Court may be made under this Act. [39] A combination of s 23 of the Federal Court of Australia Act and O 60 r 6(1) of the High Court Rules (with its specific reference to "a court") appears to give to this court power to enlarge the times fixed by O 55 of the High Court Rules if it should be appropriate to do so. Alternatively, the effect of s 38(2) of the Federal Court of Australia Act is to fill any gap in the Federal Court Rules by making applicable the High Court Rules. On either view, this court can exercise the power to enlarge the time. 9 By a similar process of reasoning, I have concluded that, in the absence of an applicable rule of procedure, and subject to any order of this Court, the rules that apply in this instance are the High Court Rules, by operation of s 38(2) of the Federal Court of Australia Act 1976 (Cth). On remitter, if no order has been made by the High Court (or in the absence of such an order, by this Court), the starting point is that the times fixed by O 55 of the High Court Rulesapply in this Court and this Court can exercise the power contained in O 60 of the High Court Rules. Insofar as I have a discretion to make an order on some other basis as to time limits applicable to the current proceeding, nothing has been put to me which outweighs the obvious importance of procedural consistency between proceedings conducted in the High Court, and those conducted in this Court on remitter. I do not see any statutory basis for presuming from the silence of a High Court order of remitter that all preliminary or discretionary questions as to whether the matter should be allowed to be brought out of time have been resolved in favour of the applicant. The present case is clearly brought outside of the applicable time limits and leave to proceed is necessary It is axiomatic that in any consideration of whether such leave should be granted requires evaluation of the applicant's prospects of success and of any prejudice which might be suffered by the respondent. 10 The respondent also contends that the earlier determination by Sundberg J of issues arising from the same Tribunal decision has the result that the applicants are barred from continuing the present proceedings by application of res judicata, issue estoppel or Anshun estoppel. It is the applicants' contention that these issues do not arise, essentially because, when Sundberg J first heard the matter, it was accepted that procedural fairness and unreasonableness were not grounds of review, and those, of necessity, were issues not considered by his Honour. Consequently, they have been properly raised for the first time in the present application. I shall return to the procedural issues of time limits and res judicata or estoppel after considering the objections raised by the applicants.