Applicant S432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1142

FEDERAL COURT OF AUSTRALIA

Applicant S432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1142 Applicant S432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs N342 of 2003 ALLSOP J 1 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N342 of 2003

BETWEEN: APPLICANT S432 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 1 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Subrule (1) of order 51A, rule 5 not apply. 2. The application for an order nisi by way of the amended draft order nisi filed in the High Court of Australia on 19 February 2003 be dismissed. 3. The applicant pay the respondent's costs. 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 N342 of 2003

BETWEEN: APPLICANT S432 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 1 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter was before me on 16 March this year. On that occasion the applicant indicated to me that he was unable to assist me with any submissions without the help of a lawyer. I made orders that allowed the applicant to file written submissions in reply to that which had been filed by the respondent Minister. The applicant took advantage of that liberty by filing further submissions on 6 April 2004, which submissions I have read. The respondent filed further written submissions on 14 May, which were also sent to the applicant. In those written submissions the respondent made clear that she wished to tender the transcript of the Tribunal hearing. 2 On 29 June 2004 my associate sent a letter to the applicant, with a copy to Mr White of Sparke Helmore, which was in the following terms: The first respondent has served submissions dated 14 May 2004 which enclosed a copy of the transcript in the proceedings before the Refugee Tribunal of 11 January 2002. My associate enclosed another copy of those submissions. The letter continued: The first respondent in this matter has asked that the transcript be placed into evidence. Do you have any objections to this taking place? His Honour has asked me to inform you of this and to ask you to indicate whether you object to this. If you do you should file and serve submissions indicating why you object. Further, you are invited to submit any further evidence you think may be made relevant by the tendering of the transcript. My associate then set out the terms of Order 51A rule 5 dealing with how order nisi applications can be dealt with. The letter then continued: The first respondent has asked that an order be made pursuant to subrule (2) dispensing with the operation of subrule (1) do you have any objection to this? If you do you should file and serve submissions on that matter. The letter continued: Please note that his Honour has indicated that your response to these matters should be filed and served within 28 days. 3 On 26 July 2004, the applicant rang my chambers and spoke to my associate. He asked when submissions were due in this matter. My associate then spoke to someone who had a better command of English. My associate advised that the submissions should be filed within 28 days from 29 June 2004, which was the following day. The friend of the applicant said that the applicant would need further time. My associate said that she could not grant further time and that this intention would need to be communicated to the Minister. Nevertheless, on 27 July 2004, a document entitled "Objection" was filed in the registry. In that document, objection was taken to the transcript being tendered and a further 11 assertions of error of the Tribunal were made. The filing of the document makes clear that the letter of 29 June 2004 was received by the applicant. Also, on 27 July 2004 my associate sent another letter to the parties. In this letter my associate set out a further timetable, which I had ordered. The relevant five numbered paragraphs were as follows: 1. If the respondent wishes to tender the transcript of the RRT hearing it will also be obliged to tender the tape recording of the hearing. 2. If this is the case, the respondent should provide a copy of the tapes of the RRT hearing to the applicant on or before Wednesday, 4 August 2004. 3. The respondent should, at the resumed hearing, file an affidavit of service of the above on the applicant. 4. The applicant is to, on or before 25 August 2004, file and serve an affidavit comprehensively setting out any errors in the transcript. 5. The matter is set down for resumed hearing on Wednesday, 1 September 2004 at 10.15am. 4 On 25 August 2004, Ms Bailey, of the solicitors for the respondent caused to be filed an affidavit of herself of 5 August. This affidavit deposed to the making of the copy of the transcript and the service of the tapes upon the applicant. Two weeks before that, on 11 August, I caused my associate to communicate with the solicitors for the respondent requiring them to serve upon the applicant the letter of 27 July 2004, earlier sent by my associate. This communication was sent by email and a copy of the email together with a note on a "with compliments" slip was sent to the applicant at his address. All communications from the Court have been sent to the applicant at the address for service that appears on his application and on the latest document filed, the "Objection". 5 On 27 August 2004, there was filed in the registry a second affidavit of Ms Bailey, sworn 26 August, deposing to the service of the letter of 27 July. No affidavit has been filed or apparently served, certainly not filed, on behalf of the applicant setting out, whether comprehensively or otherwise, any alleged errors in the transcript. This is the procedural state that the matter comes before me today for the resumed part-heard hearing. 6 I refer to my reasons for judgment and orders on 16 March 2004 in which I gave the applicant an opportunity to put on further submissions in reply. The applicant has taken that opportunity. Before dealing with those submissions I should set out the nature of the matter. 7 The matter was commenced in the High Court of Australia on 20 November 2002 and was later remitted to this Court by Gaudron J on 6 February 2003. The application seeks relief under s 75(v) of the Constitution with respect to the same decision of the Refugee Review Tribunal ("the Tribunal") as was the subject of an earlier proceeding in the Federal Magistrates Court and decided by Federal Magistrate Raphael on 21 June 2002. The Tribunal decision dated 21 January 2002 and handed down on 13 February 2002 affirmed the decision of a delegate of the Minister not to grant a protection visa. 8 Raphael FM dealt with the matter prior to the handing down of either NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 or Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. Nevertheless, Raphael FM examined the claims before him and at [6] - [14] of his reasons found, in effect, that there was no jurisdictional error identified and that the applicant's complaints including his oral submissions and affidavit related to the Tribunal's fact finding including its assessment on the evidence before it. The claims for bias or lack of bona fides were dismissed. Raphael FM's views were that the applicant's case was one that could not succeed under any interpretation of s 474 of the Migration Act 1958 (Cth), that is, that there was no jurisdictional error. 9 The decision of Raphael FM was appealed and the appeal was dismissed on 31 October 2002 under Order 52 rule 38A(1)(c) of the Federal Court Rules, the appellant (applicant to these proceedings) not attending the hearing. 10 The application previously made was brought under s 39B of the Judiciary Act 1903 (Cth). Relevantly for present purposes that is in identical terms to s 75(v) of the Commonwealth Constitution. Although the law on privative clauses (that is s 474 of the Migration Act) was unsettled at the time the learned Federal Magistrate dealt with the matter, his approach to the matter was to ascertain whether or not there was jurisdictional error. He did so and he found none. The appeal from his decision was dismissed. The very same issues are now being litigated. 11 I have examined the decision of the Tribunal and I see no basis to conclude that the views of the learned Federal Magistrate were in any respect in error. However, more importantly, this application for constitutional writs is a repetition of claims dealt with and disposed of by federal courts in respect of relief identical to that now claimed. 12 The submissions of the applicant assert an absence of procedural fairness. The submissions allege that adverse country material was not provided to the applicant. The applicant also claims a denial of natural justice on the basis of the Tribunal referring to the question of document fraud. 13 I provided the first respondent Minister with an opportunity to respond to the submissions filed on behalf of the applicant. Further submissions were filed on behalf of the Minister. It is sufficient to say that I am persuaded by those submissions that there is no substance in the application. 14 The first assertion in the applicant's submissions was that there was an absence of procedural fairness in failing to refer to material provided by the applicant. This is not a ground of procedural fairness. The Tribunal is not obliged to refer to particular material provided by the applicant. 15 It is then said that the Tribunal was bound to raise a finding which it intended to make: that there had been a lessening of violence against Muslim minorities in India. As the first respondent's submissions point out a difficulty with this submission is that there was no such specific finding made. The Tribunal did base its decision at least in the alternative upon the availability to the applicant of effective protection outside Calcutta but that, as the respondent submitted, was a different point. Nor do I think, having read the transcript of the Tribunal hearing, that there was any failure to observe procedural fairness in connection with the dealing with Muslims in India. 16 Complaint is then made about the findings and discussion of document fraud and the fact that the Tribunal member used his own experience. A Tribunal of this kind will of necessity perfectly properly use its own experience. This assertion was made in conjunction with an assertion and submissions of a lack of impartiality. There was no basis for the assertion of a lack of impartiality. 17 In fact, the proposition that there was widespread document fraud in India was put to the applicant during the hearing. I am satisfied from the Tribunal's transcript that natural justice was afforded in this respect. In any event, the Tribunal did not make any finding that there was document fraud in the present case. 18 In any event, the question of jurisdictional error attending the Tribunal's decision has been litigated in prior proceedings in which there was an appeal. For this reason alone the application should fail. 19 This matter is a remittal from the High Court. The application before me is a draft order nisi in which orders are sought that the first respondent show cause why injunctive relief, mandamus and certiorari should not issue out of the Court. 20 The orders of Gaudron J made on 6 February, 2003 were as follows. 1. The applicant be granted leave to amend the draft order nisi, the amended draft order nisi to be filed not later than 21 February 2003. 2. The further proceedings in this application be remitted to the Federal Court of Australia. 3. The application proceeding in that Court as if the steps already taken in the application in this Court had been taken in that Court. 4. Upon either party (a) lodging in the High Court Registry in Sydney by 4:00 pm on Friday 21 February 2003 five copies of the order of the Court made on 6 February 2003; and (b) lodging in the High Court Registry in Sydney by 4:00 pm on Friday 21 February 2003 one copy of all documents filed by the parties in this application, the Registrar of this Court forward to the proper officer of that Court copies of all documents filed in this Court. 5. The costs of the application to the date of remission including the costs of this order are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to the Federal Court of Australia and in the discretion of the Court. 21 It is clear from those orders that the matter came before this Court by way of draft application for an order nisi. Order 51A of the Federal Court Rules provides amongst other things in Rule 5 as follows: (1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply. 22 As I earlier indicated the respondent Minister wishes an order to be made under subrule (2) that subrule (1) does not apply and that I should deal with this matter by refusing the application for an order nisi. As I indicated earlier, I provided the applicant with an opportunity to object to this course together with submissions about it if he wished. No such objection or submissions have been filed. 23 Though I have looked at the matter in some detail and received helpful submissions from the respondent's counsel I think it is an appropriate matter in which the power under subrule (2) of rule 5 should be employed. This is a re-litigation of earlier disposed of litigation. No reason has been shown why what is apparently a repetition of earlier litigation should now be allowed to go forward under the rubric of a s 75(v) application. Secondly, on looking at the reasons for the Tribunal and considering all that has been put by both the applicant and the respondent I see no arguable basis for review. 24 Therefore, in my view the appropriate course is to order that subrule (1) of Order 51A rule (5) not apply and to dismiss the application in the amended draft order nisi. Should a view be taken that this is not an appropriate course I should clarify if it is not otherwise obvious from the balance of my reasons that if I had granted the order nisi I would have discharged it and otherwise dismissed the application as a final hearing. 25 The consequence of the course I propose to adopt is that the orders that I make are interlocutory. Leave to appeal is required. Any application for leave to appeal should be filed and served within seven days. 26 The orders of the Court are: 1. Subrule (1) of order 51A, rule 5 not apply. 2. The application and the amended draft order nisi filed in the High Court of Australia on 19 February 2003 be dismissed. 3. The applicant pay the respondent's costs.