FEDERAL COURT OF AUSTRALIA S1775 of 2003 v Refugee Review Tribunal [2004] FCA 1758 S1775 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR N2326 OF 2003 EMMETT J 26 JULY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N2326 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: S1775 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 26 JULY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Ward Maxwell & Co pay the second respondent's costs of the proceeding. 2. Ward Maxwell & Co pay the costs of the motion. 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 N2326 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: S1775 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE: 26 JULY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By notice of motion filed on 10 May 2004, the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), applied for an order that the applicant's solicitors, Ward Maxwell & Co ('the Solicitors'), personally pay the Minister's costs of the proceeding, including the costs of the notice of motion. The ground on which the Minister seeks that order is that the proceeding was commenced and prosecuted without any proper consideration of its prospects of success. The Solicitors did not suggest that there was any doubt about the Court's power to make the order sought by the Minister. 2 The applicant in the proceeding is a citizen of India who arrived in Australia on 4 April 1997. On 3 July 1997, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 21 July 1997 a delegate of the Minister made a decision to refuse to grant a protection visa and on 14 August 1997 the applicant applied to the first respondent, the Refugee Review Tribunal ('the Tribunal'), for review of the delegate's decision. On 13 April 1999, the Tribunal affirmed the decision not to grant a protection visa. 3 At some time thereafter the applicant was named as a represented party in one or other of two proceedings in the High Court being Muin v Refugee Review Tribunal, S36 of 1999 ('Muin') and Lie v Refugee Review Tribunal, S89 of 1999 ('Lie'). It is significant that it is not clear in which proceeding he was so named. 4 In each of Muin and Lie, the respective plaintiffs sued in a representative capacity complaining of the procedures adopted by the Tribunal in reviewing adverse decisions of delegates of the Minister relating to claims for protection visas. Each proceeding was commenced in the High Court's original jurisdiction and in each case Gaudron J referred questions to a Full Court. In essence, the questions asked whether, upon certain facts stated, and the inferences if any, to be drawn from those facts, there was a failure by the Tribunal to accord procedural fairness or a failure to comply with ss 418(3) or 424(1) of the Act. They also asked, in the event of an affirmative answer, what relief should be given. 5 The facts stated in the two proceedings were similar although there was at least one significant difference. For the purposes of the referred questions, nothing turned upon the representative nature of the proceeding. Argument was confined to the cases of the plaintiffs themselves, each of whom was of Indonesian nationality and Chinese ethnicity. The essence of their claims was that, if they returned to Indonesia, they would be persecuted on racial grounds. In each case the delegate was required to consider circumstances in Indonesia relating to the treatment of Chinese, including the willingness and ability of the Indonesian authorities to prevent ill treatment. In the present case, the applicant claimed to fear persecution if he returned to Punjab. 6 On 8 August 2002, the High Court made orders in both of the proceedings, answering certain of the questions favourably to the plaintiffs. Specifically, the High Court answered 'yes' in each case to the question 'Was there a failure to accord the plaintiff procedural fairness?'. The Court said that prohibition should issue to prevent the Minister from acting on the Tribunal's decisions, that certiorari should issue to quash the decisions and that mandamus should issue to the Tribunal directing it to hear and determine the plaintiffs' review applications in accordance with the law. 7 Following those orders, Gaudron J made further orders in each of the proceedings. The effect of those further orders was, for present purposes, as follows: * leave be granted to any person named as a represented party in the schedule to the statement of claim to file on or before 1 June 2003 an application seeking an order nisi in relation to the decision of the Tribunal in relation to that person; * any application filed pursuant to that leave be remitted instanter to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth); * upon the filing of an application pursuant to that leave, the name of that applicant be deleted from the schedule; * subject to the following, and in the absence of any further order of the Court, on and from midnight on 30 May 2003, the proceeding stand dismissed; * liberty be reserved to any person whose name appears in the schedule to apply, at any time prior to 30 May 2003, to extend the period of time referred to above on the ground that it has not been possible to obtain proper instructions with respect to the continuation of the matter. 8 On 30 May 2003 the Solicitors filed in the registry of the High Court an affidavit sworn 27 May 2003 by Mr Ejaz Khan, a solicitor employed by the Solicitors. Annexed to the affidavit was a draft order nisi and a copy of the decision and reasons of the Tribunal of 13 April 1999. By the draft order nisi, the Tribunal and Minister were called upon to show cause why writs of certiorari and mandamus should not be issued upon the grounds that: (1) the decision of the Tribunal was beyond its jurisdiction; (2) there was a denial of procedural fairness in the making of the decision in that the Tribunal took into account matters adverse to the applicant without notice to him; (3) the Tribunal breached the rules of natural justice in connection with the making of the decision; (4) the procedure that was required by law to be observed in order to make the decision was not observed; (5) the making of the decision was an improper exercise of the powers conferred by the Act. 9 No particulars of those grounds were provided otherwise than by the affidavit. In the affidavit, Mr Khan relevantly said: '7. The [applicant] contends that the [Tribunal] took into account written submissions by the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs made pursuant to section 423 (2) of the Act ("the section 423 submissions"). 8. The section 423 submissions were received by the [Tribunal] and the [Tribunal] did not first bring the said submissions to the attention of the [applicant] and the [applicant] was not accorded an opportunity to comment on them. 9. Accordingly the [applicant] contends that the [applicant] was denied procedural fairness in the making of the [Tribunal] decision made on 13 April 1999.' 10 At about the same time as Mr Khan's affidavit was filed in the High Court, the Solicitors filed affidavits in relevantly identical terms on behalf of more that 100 other unsuccessful applicants for protection visas. In each of those affidavits, Mr Khan asserted that the Tribunal took into account written submissions by the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs made pursuant to s 423(2) of the Act and that such submissions were not brought to the attention to the relevant applicant. 11 Pursuant to the orders made by Gaudron J on 25 November 2002, immediately upon filing the affidavits, those applications were remitted to the Federal Court. On 30 April 2004, 89 of the applications were listed before me for call over. On that day, I refused orders nisi in each of the 89 proceedings and ordered that O 51A r 5(1) of the Federal Court Rules not apply to the proceeding (see S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872). 12 On 30 April 2004, I also granted leave to the Minister to file a notice of motion seeking costs against the Solicitors personally. The notice of motion of 10 May 2004 was filed pursuant to that leave. The Minister also filed an affidavit of Andras Markus of 10 May 2004 in support of the motion. The motion came before me for directions on 21 May 2004 when, by consent, I directed that the Solicitors file and serve any evidence in respect of the motion on or before 18 June 2004 and that the Minister file and serve any evidence in reply on or before 2 July 2004. I fixed the motion for hearing on 21 July 2004. 13 No affidavit was filed by the Solicitors pursuant to my direction. However, when the motion came on for hearing on 21 July 2004, the Solicitors sought leave to file an affidavit of Mr Khan sworn on 20 July 2004. No explanation was offered as to why the direction had not been complied with. Nevertheless, the Minister did not oppose reliance upon the affidavit. Mr Khan's affidavit does nothing to allay the very considerable disquiet that I have concerning the commencement of this proceeding by the Solicitors. 14 Mr Khan said that he has practised as a solicitor in Australia with the Solicitors since July 2001 and that, since that time, his work has been a mix of about 50 per cent migration work and 50 per cent general legal work. He said that in early 2003 he became aware of the High Court's decisionin Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002 190 ALR 601). On 1 May 2003 he had a telephone call from a Mr Prlhad KC, a migration agent. Mr KC said words to the following effect: 'I have been approached by some 10 to 20 people who are [a]ffected by the Muin and Lie decisions. They want me to investigate whether there is any chance of reviewing the Tribunal's decision. Adrian Joel has been acting for them and each of them has been told by him that they will need to pay a further $4,400 in fees if he is to continue to act for them. …Joel is acting for about 7,500 individuals each of whom is a member of the class actions in Muin and Lie. Justice Gaudron has directed that persons who wish to proceed with their matters must take certain steps no late[r] than 30 May 2003.' 15 Mr Khan replied that he would 'look at them and that he should send over what he had'. On the same day, Mr Khan received from Mr KC a five page facsimile enclosing a number of documents including a circular letter dated 9 April 2003 on the writing paper of Adrian Joel & Co solicitors, which began as follows: 'I have carefully examined your case and it is very weak. Before we formally commence individual legal proceedings in the High Court its very important that you make an appointment to see me only – ADRIAN JOEL. Our advi[c]e will be to seriously consider discontinuing the matter.' 16 Mr Khan went on to say that he subsequently heard from another migration agent who said that he had about ten matters that were affected by Gaudron J's orders. Mr Khan told him to send the files and that he would 'look at them'. Subsequently, Mr Khan had a further conversation with Mr KC who said words to the following effect: 'You should expect a large number of persons who are affected by the Muin and Lie decisions will contact you before the end of May. They will be instructing you to lodge review applications on their behalf.' 17 Throughout May, Mr Khan received instructions from various individuals in relation to what he described as 'the class action'. He annexed to his affidavit a schedule indicating the names of the applicants and the respective dates on which he received instructions in relation to them. Affidavits in the form of the affidavit filed in this proceeding were filed in each of 110 matters. The dates of the affidavits varied and some were filed in June 2003 following an extension of the 30 May 2003 deadline. 18 On 2 May 2003, Mr Khan had obtained from the High Court registry a copy of the orders made by Gaudron J on 25 November 2002 in Muin and Lie. He was of the view that he needed 'the input of counsel before proceeding further'. Accordingly, in early May 2003 he spoke to David Burwood of counsel about the clients who had been referred to him by Mr KC. Mr Burwood gave him some advice about the matters on the telephone and Mr Khan then provided Mr Burwood with the materials he had received from Mr KC. On 10 May 2003 Mr Burwod provided Mr Khan with a draft affidavit. No particulars of the advice given by Mr Burwood or of the draft affidavit have been furnished by Mr Khan on the basis that they are privileged. There has been no suggestion that the Solicitors have sought to waive the applicant's privilege. 19 Mr Khan's affidavit of 20 July 2004 also contained the following paragraphs concerning his understanding of the relevant legal principles: '14. Based on discussions I had had with many migration agents, I believed in May 2003 that there was a consensus amongst them that the Tribunal always received submissions, being country reports, and that those country reports were not ever shown by the Tribunal to the prosecutors. … 16. I was aware that the end of May 2003 was a deadline and I therefore regarded it as essential that each of the claims be filed before that date. … 18. Prior to the commencement of the proceedings I did not carry out any investigation into the factual assertion contained in paragraphs 7 and 8 of [my affidavit of 27 May 2003]. This was because I was more concerned to meet the deadline and because of my view of the general consensus to which I have referred.' 20 It is difficult to understand how a qualified lawyer who claimed to have spent 50 per cent of his time doing migration work since July 2001 would fairly form the view that country information could conceivably constitute written argument relating to the issues arising in relation to a delegate's decision under review by the Tribunal. Mr Khan had absolutely no basis whatsoever for forming the view that the Secretary of the Department had given the Tribunal written argument relating to the issues arising in relation to the decision of the Tribunal in relation to the applicant. 21 Section 423 of the Act provides as follows: '(1) An applicant for review by the Tribunal may give the Registrar: (a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and (b) written arguments relating to the issues arising in relation to the decision under review. (2) The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.' 22 Mr Khan's conduct is quite extraordinary. Notwithstanding that Gaudron J expressly reserved leave to apply to extend the time for filing an order nisi, on the ground that it was not possible to obtain proper instructions with respect to the continuation of the matter, Mr Khan blithely went ahead in filing in excess of 100 virtually identical affidavits making factual assertions into which he did not carry out any investigations. His only justification for that conduct was his assertion that he had a belief that the Tribunal always received country reports and that those country reports were never shown by the Tribunal to applicants for protection visas. 23 Mr Khan commenced this proceeding in the High Court without any consideration of the prospects of success of the proceeding. The material available to Mr Khan demonstrated only that the proceeding had no prospects of success at all on the basis asserted in his affidavit. No attempt was made to support any of the other grounds set out in the draft order nisi. In all of the circumstances, I consider that it was quite unreasonable for Mr Khan to have filed in the High Court his affidavit of 27 May 2003 without first considering whether there was any possible basis for making the assertion that the Secretary had given to the Registrar of the Tribunal written argument relating to the issues arising in relation to the delegate's decision concerning the applicant. 24 The circumstances included the fact that, while there are numerous references in the Tribunal's reasons of 13 April 1999 to 'independent evidence' concerning conditions in the Punjab region of India, there is no mention of any written argument from the Secretary of the Department. The information available to Mr Khan included the opinion apparently expressed by the applicant's former solicitor that his case was 'very weak' and that he was likely to be advised 'to seriously consider discontinuing the matter'. The circumstances also included the fact that, if it was not possible prior to 30 May 2003 to obtain proper instructions with respect to the continuation of the matter, liberty had been reserved to apply to extend the period of time within which to file an application for an order nisi in the High Court. 25 A possible consequence of the conduct of the Solicitors in commencing a large number of proceedings that may not have prospects of success is that, if there is a case amongst them that has legal merit, there is a risk that that case will be lost in the flood of unmeritorious cases. I consider that the Solicitors should be ordered to pay the Minister's costs of this proceeding, together with the costs of the motion. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 12 January 2005 Counsel for the Applicant: Mr N Perram Solicitor for the Applicant: Acuiti Legal Counsel for the Respondent: Mr J Basten QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21, 26 July 2004 Date of Judgment: 26 July 2004