S325 of 2002 v Refugee Review Tribunal [2005] FCA 125

FEDERAL COURT OF AUSTRALIA

S325 of 2002 v Refugee Review Tribunal [2005] FCA 125

ADMINISTRATIVE LAW – Application for prerogative relief – Migration – Challenge to validity of decision of Refugee Review Tribunal – Earlier application for prerogative relief dismissed by High Court – Discretion of Court to make order nisi – Question of existence of exceptional circumstances. Judiciary Act 1903 (Cth) s 39B High Court Rules Order 55, rule 1 Federal Court Rules Order 51A rule 5 S325 of 2002 v REFUGEE REVIEW TRIBUNAL AND COMMONWEALTH OF AUSTRALIA NSD 2006 of 2003 WILCOX J 11 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2006 of 2003

BETWEEN: S325 of 2002

Applicants

AND: REFUGEE REVIEW TRIBUNAL

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE: WILCOX J

DATE OF ORDER: 11 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an order nisi be refused. 2. The proceeding be dismissed. 3. The applicants pay the second 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 NSD2006 of 2003

BETWEEN: S325 of 2002

Applicants

AND: REFUGEE REVIEW TRIBUNAL

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE: WILCOX J

DATE: 11 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 This proceeding was commenced on 16 September 2002 when a writ of summons and a statement of claim were filed in the High Court of Australia. The documents named as defendants the Refugee Review Tribunal ('the RRT') and the Commonwealth of Australia ('the Commonwealth'). The RRT filed a submitting appearance but the Commonwealth has appeared to resist the applicants' claim. On 5 June 2003, the Commonwealth of Australia filed a summons seeking dismissal of the proceeding as an abuse of process. 2 Although neither of the applicants' filed documents acknowledged the fact, the relief the applicants needed to obtain was relief of the type described in Order 55, rule 1, of the High Court Rules. This was because the applicants were relying upon s 75(v) of the Constitution of the Commonwealth of Australia. They were seeking a writ of certiorari or prohibition against a decision of the RRT that had been made on 26 April 2001. 3 Order 55, rule 1(2) of the High Court Rules provides as follows: 'Subject to sub-rules (3) and (4) of this rule, the application shall in the first instance be for an order calling on the proposed respondent to shew cause why the writ or order should not be issued or made, the information filed or other relief given.' Subrule (3) provides an exception in the case of an application by a law officer. Subrule (4) provides for a case where the Court or a Justice has determined that it appears necessary for the advancement of justice to grant an order absolute in the first instance. Neither of these exceptions applies to this case. Consequently, the general rule set out in subrule (2) governs this case. 4 The application that was before the High Court should therefore be seen as having been one, in the first instance, for an order calling on the proposed respondent to show cause why the desired writ or order should not be issued or made. 5 The matter came before Gummow J, in the High Court, on 26 August 2003. On that date, his Honour made orders including the following: '1. There be remitted to the Federal Court of Australia New South Wales District Registry the whole of the cause No S325 of 2002, including the balance of the summons filed 5 June 2003, and that all steps taken to date in this Court, including the filing of evidence and process, be effected as if taken in the Federal Court.' 6 It will be noted that Gummow J did not deal, one way or the other, with either the application for summary dismissal or the matter of an order calling on the proposed respondent to show cause. His Honour obviously regarded these issues as being included in the remittal to this Court. They remain outstanding at this moment. 7 Order 51A of the Federal Court Rules deals with matters remitted by the High Court of Australia. Rule 5(1) provides a general rule: 'Subject to subrule (2) or 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 an order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute be made, will not make the rule nisi, but will proceed directly to make the order absolute.' Subrule (2) provides an exception, in a particular case, in that the Court or a Judge may order that subrule (1), or any part of it, does not apply. 8 In the present case, I determined that I ought to make an order pursuant to subrule (2) of Rule 5. My reason for doing this was that this is not the first proceeding brought by the applicants seeking prerogative relief in relation to the RRT decision of 26 April 2001. An earlier application under s 75(v) of the Constitution of the Commonwealth of Australia was made in the High Court. It was referred to a Full Court and heard, on 29 November 2001, by a Court constituted by Gleeson CJ and McHugh and Gummow JJ. On that day, after hearing counsel over some hours, their Honours dismissed the application for an order nisi with costs. I felt that an application for prerogative relief to challenge a decision that had already been considered in the Full Court of the High Court raised a requirement for this Court to consider carefully whether it was appropriate to grant an order nisi. Leaving aside any problem faced by an applicant in such a case from the doctrines of res judicata or Anshun estoppel, only in an exceptional case, in my opinion, would it be appropriate to so exercise the discretion of the Court as to put a respondent to the necessity of defending, for the second time, a particular decision or action. 9 Both parties have filed affidavits in the present proceeding. Two affidavits of the female applicant set out her history of the matter. Three affidavits have been made by the solicitor for the respondent. Many of the statements made in the affidavits are controversial. I told the parties I would not attempt to resolve those controversies, for the purposes of considering the application for an order nisi. I said I would take into account the allegations made in the various affidavits in order to determine whether this was a case in which it is appropriate to grant an order nisi; in other words, I would use the affidavits to inform myself of the version of the facts contended for by each party. To the extent that the affidavits annex documents, whose authenticity is not in question, I am able to do more than understand the nature of the parties' assertions. I can and do treat those documents as evidence of the facts stated in the documents. 10 It appears from these documents that there was an RRT decision, in relation to the present applicants' claims for protection visas, prior to the decision that is the subject of the present application. The earlier decision was handed down on 21 December 1998. The RRT, on that occasion, was constituted by Mr R. Fordham. Mr Fordham accepted that the applicants had a subjective fear of persecution if they were returned to their country of nationality, Romania. However, after considering the situation that applied in Romania, in the period leading up to the making of his decision, Mr Fordham concluded that such a fear was not well founded; consequently, it was not a fear covered by the Convention on the Status of Refugees, Article 1A(2). 11 Upon an application for judicial review in this Court, Mr Fordham's decision was set aside. Tamberlin J held that Mr Fordham ought not, without notice to the applicants, to have relied on information as to events in Romania that had occurred after the oral hearing conducted by him; if such information was to be relied upon, it ought to have been brought to the notice of the applicants in order to allow them the opportunity to comment on it. 12 The Minister for Immigration and Multicultural Affairs appealed to a Full Court against Tamberlin J's decision. The appeal was dismissed. In the result, Tamberlin J's order remained in force. When the matter returned to the RRT, it was allocated to a different Tribunal member, Ms S Zelinka. 13 Over a period of some months, Ms Zelinka attempted to arrange an oral hearing but her efforts came to nothing. It is not necessary for me to go into the reasons for that situation. They were canvassed during the hearing conducted by the Full High Court. The applicants put to the High Court that the RRT had denied them a fair opportunity of an oral hearing. The High Court did not accept that claim. This was the reason it refused the earlier application for prerogative relief. 14 Whatever the background circumstances, the fact is that the applicants did not attend the oral hearing that Ms Zelinka had appointed. Consequently, they gave her no opportunity to invite their comment upon any matters about which she harboured doubts or uncertainties. 15 Counsel for the applicants, Ms Lucy McCallum, raised two grounds today. The first of them arises out of the circumstance that, in 1997, two people associated with the primary school attended by the applicants' son wrote letters to the RRT supporting their application for recognition as refugees. Each letter spoke in favourable terms of the characters and personalities of the adult applicants. The writer of each letter indicated a belief that the two adult applicants had a real fear as to what might happen to them if they were returned to Romania. The letters went on the RRT file. They may have been read by Mr Fordham, although no reference was made to them in his reasons for decision. 16 Between the date of Mr Fordham's decision and that of Ms Zelinka, the author of one of the letters apparently rang the RRT registry. There is a note on the registry file of a telephone call, on 28 February 2000, from this person. The note is in these terms: 'He stated that he no longer wished to be associated as a supporter of the applicant. I explained that his claim of being a sponsor to the applicant was not a recognised position in the case and that he had no residual obligations in the matter.' 17 Ms McCallum submitted that I should infer that Ms Zelinka became aware of this note and would thereby have learned that this person was no longer a supporter of the applicants and no longer maintained the views he had expressed in his letter. She said this could explain the fact that Mr Fordham had been prepared to accept that the applicants had a subjective fear of persecution whereas Ms Zelinka did not expressly say that she did so. 18 I asked Ms McCallum whether this point had been raised in the High Court. She said it had not been argued, although her clients had instructed her that something along these lines had been discussed in conference with the counsel who appeared for them in the High Court. Ms McCallum apparently did not know why it was not raised with the High Court. 19 The point involves a high degree of speculation. It is necessary to speculate, first, that the registry file note came to Ms Zelinka's attention and, secondly, that she would have reasoned in the way suggested by Ms McCallum. However, the main problem about the point is that there is no indication whatever that Ms Zelinka was unimpressed with the applicants as people, or that she had any doubt about their general credibility. 20 The basis of the applicants' claim of persecution was that the male applicant had been an informer for Securitate, the secret police force that operated during the Communist regime in Romania. He said he feared persecution, if he returned to Romania, from people who might have been implicated by a report submitted by him. 21 Ms Zelinka accepted the male applicant had been an informer for Securitate during the period that he claimed, from about 1980 until the disbandment of Securitate at the end of 1989. She noted that he claimed never to have been more than an unwilling, low-level informer, who did as little reporting as possible, short of incurring problems with his supervisor. She also noted that his reports were submitted under a code name, rather than his own name. So Ms Zelinka thought it would be difficult for anybody to trace a report back to him. Finally, she noted that information has emerged since the collapse of the Communist regime that up to one quarter of the adult population of Romania were informers for Securitate during those years. In short, Ms Zelinka accepted the general story put by the applicants but reached the conclusion that it did not represent a threat to their welfare at this time. 22 There were two aspects of the applicants' story that Ms Zelinka felt unable to accept. The first of them relates to an alleged meeting in August 1990, after the male applicant had contacted his former supervisor, so he said, and told him he no longer wished to be involved in informing. The male applicant said that, shortly after that contact, he and his wife were apprehended in the street and taken away for interrogation. They were allowed to leave unharmed. 23 Ms Zelinka gave a number of reasons for concluding that this event did not happen. 24 The other unaccepted claim relates to an incident in Belgium, where the applicants lived after they left Romania. Apparently, a fire occurred in the premises where they were residing. The applicants said this was related to the male applicant's former activities in Romania, that they were put in fear by the fire and this is why they left Belgium. Ms Zelinka was unpersuaded about this, not least because of a gap of about 15 months between the date of the fire and their departure from Belgium. During that time, they remained at the same address. 25 In the circumstances I have narrated, it is difficult to think that any information that Ms Zelinka had about the withdrawal of support by the letter writer would have affected her conclusion. The application for protection visas failed because, after carefully considering the situation that had developed in Romania in recent years, Ms Zelinka reached a clear and positive conclusion that there was no longer a risk to people who had been low-level security informers. 26 It is also relevant to note that Ms Zelinka addressed her mind to the conclusion she would have reached if she had been satisfied that the two unaccepted claims were correct. Ms Zelinka said that if, contrary to her findings, the claims were correct: '[O]n the basis of the country information already discussed above, I am not satisfied that those incidents now give rise to a well-founded fear of persecution from the Securitate or its successors.' 27 The other matter put to me by Ms McCallum is that Ms Zelinka denied the applicants procedural fairness because she failed to inform them of her doubts about the truth of these two claims. Ms McCallum argues that Mr Fordham had apparently accepted these claims and the applicants were entitled to assume that Ms Zelinka would follow the same course. If this was not to be so, she said, they should have been given specific notice of that fact so that they could have dealt with her doubts. 28 It seems to me this submission is unsound. When a matter is remitted to the RRT for further hearing, the RRT has to start again, although reference may be made to the earlier evidence. In this case, the second hearing was before a different member. All factual findings were open for reconsideration. A member conducting a rehearing is not bound by the views reached by the member who conducted the earlier hearing. Neither is there a general obligation for a decision-maker to telegraph to an affected person the views that he or she is forming about the case. There is a clear distinction between that situation and one where the member is taking into account factual allegations of which the applicant is not made aware. 29 In the present case, the task faced by Ms Zelinka was made more difficult by the fact that the applicants chose not to attend an oral hearing before her. At an oral hearing she could have raised with them her doubts. This process might have been useful to her. It might have caused her to put aside doubts. However, the applicants deprived themselves of that possibility by electing to stay away from the hearing. 30 There is no substance in either of the points that have been raised. 31 This is a case in which a person has previously unsuccessfully challenged the impugned decision. That challenge has been dealt with at the highest level and failed. With the exercise of some ingenuity, further points have been devised in order to renew the challenge. Having regard to the history of the matters, it would be an erroneous exercise of the Court's discretion to make an order that the respondent show cause. 32 I refuse the application for an order nisi. I dismiss the proceeding and order that the applicants pay the respondent's costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.