M1027/03 v Refugee Review Tribunal [2004] FCA 733

FEDERAL COURT OF AUSTRALIA

M1027/03 v Refugee Review Tribunal [2004] FCA 733

M1027/2003 v GRAEME BREWER sitting as the REFUGEE REVIEW TRIBUNAL,

COMMONWEALTH OF AUSTRALIA and SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 470 of 2004

RYAN J

8 JUNE 2004

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 470 of 2004

BETWEEN: M1027/2003

Applicant

AND: GRAEME BREWER sitting as the REFUGEE REVIEW TRIBUNAL

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

JUDGE: RYAN J

DATE OF ORDER: 8 JUNE 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the application, 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 470 of 2004

BETWEEN: M1027/2003

Applicant

AND: GRAEME BREWER sitting as the REFUGEE REVIEW TRIBUNAL

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

JUDGE: RYAN J

DATE: 8 JUNE 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court an application for leave to appeal from an order made by Heerey J on 22 March 2004. His Honour then refused to grant an order nisi on an application by the applicant for the issue of prerogative writs arising out of a decision by the first respondent ("the Tribunal") on 19 November 1999, affirming a decision of a delegate of the third respondent ("the Minister") to refuse the applicant a protection visa. The present application had been instituted in the High Court on 30 May 2003 and was remitted to this Court by order of the High Court at some time between that date and early September 2003. 2 Heerey J, in his reasons for judgment on 22 March 2004, noted that, as long ago as 30 June 1997, the applicant had applied for a protection visa which, on 30 July 1997, had been refused by a delegate of the Minister. That refusal was affirmed by the Tribunal, as recited above, on 19 November 1999. Thereafter, the applicant commenced proceedings in this Court under what was then Pt 8 of the Migration Act 1958 (Cth). That application was dismissed by Weinberg J on 2 May 2001. It was more than two years later that the applicant sought prerogative writs in the High Court. 3 Heerey J also noted that the applicant's application to the High Court had been as a member of the class proceeding considered by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 ("Muin"). In that case the Minister's delegate had relied on some 31 items of evidence, which became known as the Part B documents. After the applicant had applied to the Tribunal for review of the delegate's refusal to grant him a protection visa, he was advised by the Tribunal that it had asked the Department to send to the Tribunal a copy of "its documents about your case" and that when it had received them the Tribunal would "look at them, along with any other evidence on the Tribunal file". In fact, the file despatched to the Tribunal did not include copies of the part B documents. In his application to the High Court, Mr Muin stated that, had he been aware of the fact that the Department might not have physically transferred all of the Part B documents to the Tribunal, he would have made submissions to the Tribunal going to the content of the Part B documents and would have sought to adduce evidence in addition to that which he did send to the Tribunal. 4 It was held by a majority of the High Court in Muin that there had been a failure to accord procedural fairness to Mr Muin in relation to the Part B documents and, because of an omission to acquaint him with a written submission from the Department directed to whether the Indonesian authorities were willing and able to provide protection to citizens of ethnic Chinese background, some of that information was adverse to Mr Muin. 5 Heerey J, in his reasons for judgment of 22 March 2004, set out matters to which the applicant had deposed in his affidavit sworn 28 November 2003. I have examined that affidavit for myself and it seems that what his Honour set out was a paraphrase, rather than a verbatim quotation, of the relevant paragraphs. To my mind, nothing turns on the difference between his Honour's paraphrase and the applicant's actual words, which were; '(2) I believe the fact (if it be the fact) that all adverse material which the Tribunal said it had "looked at" did not include all the documents which it received from the delegate when my application was refused. I now have a copy of the Tribunal file that has been released to me under Freedom of Information. The Tribunal file does not indicate whether all of the documents have in fact been sent by the department to the Tribunal. (3) If I had been made aware that was adverse material, I would have taken steps to seek release of that information and made appropriate submissions to the Tribunal and on appeal to the Federal Court. (4) Further I believe that the Tribunal has relied on some documentation not brought to my attention and I believe I have been denied procedural fairness. (5) Further matters have arisen which are new issues which I would ask the Court to consider. Sri Lanka has once again been in the international news as it appears that the peace process is so fragile that it may collapse and if this occurs the ethnic conflict will escalate. (6) I submit that the relief I am now seeking in these proceedings is not the same as I sought in the previous action in the Federal Court. I seek relief because I believe I have been denied procedural fairness and I refer to the High Court case of Muin and Others No S36/1999 (2002) HCA 30 (8 August 2002).' 6 After the reference to the applicant's affidavit, Heerey J went on to conclude: 'On the hearing before me, the applicant, who is not represented, tendered some documents which he said he obtained from the library of the Tribunal. These deal with circumstances in Sri Lanka quite some years ago now. In fact most of the document was concerned with those situation reports of April 1996. But it is not asserted that the Tribunal relied on these documents, or that they should have been brought in some way to the Tribunal's [sic; scil applicant's] attention.' 7 His Honour continued: 'In my opinion the applicant has shown no reasonable prospects of success which would warrant extension of time. He has failed to identify any documents which would fall within either limb of Muin's case; that is to say, either a favourable document which the Tribunal misled him into thinking it had relied on, or an unfavourable document which the Tribunal did not give him the opportunity to answer. The application for an order nisi is refused with costs.' 8 That conclusion makes clear the signal failure of the applicant to bring himself within the principle enunciated by the majority of the High Court in Muin. The applicant has not asserted any mistaken belief that documents had been transmitted to the Tribunal by the Minister's delegate nor, as his Honour pointed out, was there any suggestion that the Tribunal had relied on material adverse to the applicant which it had not brought to his attention. 9 Accordingly, the applicant failed to establish the first premise in Muin. That meant that he had no basis on which to erect evidence as to what he would have done had he known that the material favourable to him was not before the Tribunal, or that the Tribunal had available to it information which was adverse to the applicant. 10 It has now authoritatively been established that a refusal to grant an order nisi in an application for a prerogative writ is interlocutory in nature (see Applicant M1039/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 130 at [2], citing another judgment of a Full Court of this Court in NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 297). Accordingly, the applicant can only appeal from his Honour's refusal if a single Judge or a Full Court grants leave. 11 The principles to be applied in deciding whether to grant leave to appeal from an interlocutory order are now well-established. They are that leave should be granted if, first, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by a Full Court, and, secondly, a substantial injustice would result if leave were refused, supposing the decision to have been wrong (see for example Decor Corporation Pty Ltd v Dart (1991) 33 FCR 397). The applicant, who now appears in person, has made in the course of oral submissions today various criticisms of the findings and reasons of the Tribunal in its decision of 19 November 1999. However, it has not been shown that criticisms to the same effect were not made, or could not have been made, to Weinberg J at the hearing on 23 March 2001 which led to his Honour's order of 2 May 2001. The applicant was then represented by Counsel and solicitors. 12 I have been unable to discern any error in Heerey J's reasoning that the applicant has shown no reasonable prospects of success in his substantive application for mandamus or certiorari. As his Honour pointed out, prohibition can no longer go to the Tribunal, because there is no extant proceeding there left to prohibit (see the observations of Gray J in Re Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition v Ruddock [2003] FCA 684, at [14]). 13 If it matters, I also consider, for the reasons explained by Heerey J, that the applicant has failed to bring himself within the principles governing the Court's discretion to extend time, in this case within which to appeal. That is particularly so having regard to the long unexplained delay of over two years between the order of Weinberg J and the institution of proceedings in the High Court. The applicant did seek to explain that by reference to his joinder in the Muin class proceedings but, as I have already indicated, the applicant has at no stage demonstrated any entitlement to avail himself of the principles enunciated by the majority of the High Court in Muin. It follows that the applicant has not satisfied the first condition stipulated in Decor Corporation Pty Ltd v Dart for a grant of leave to appeal from an interlocutory order; that is, that the reasons for the interlocutory order be attended with sufficient doubt to warrant reconsideration. Leave to appeal must therefore be refused, with costs.