Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT LANDER J 3 The applicant, who was born in Sri Lanka, is in his early forties. He arrived in Australia on 14 January 1996. His wife and children joined him on 19 July 1996. On 15 October 1996 he applied for a protection visa. On 30 June 1997 the Minister's delegate refused to grant the applicant and his family a protection visa. He sought a review of that refusal and, on 27 January 2000, the Refugee Review Tribunal (RRT) affirmed the decision of the Minister's delegate not to grant a protection visa. 4 On 1 March 2002 the applicant applied in the High Court of Australia for the issue of the constitutional writs seeking to quash the RRT's decision, an order prohibiting the Minister from giving effect to the decision, and an order directed to the principal member of the RRT to appoint a member of the RRT to rehear and determine the applicant's application for a review of the Minister's delegate's refusal to grant the protection visa. On 7 February 2003 Hayne J remitted the matter to this Court for hearing. 5 On 3 April 2003 a judge of this Court made orders directing the applicant to make any application for an extension of time within which to bring the application that the applicant might be advised by 8 May 2003. The application was listed for hearing on 29 May 2003. 6 On 27 May 2003 a document, dated 26 May 2003 and signed by the applicant's then solicitor, was filed. The document purported to discontinue the application. However, the application could not then be discontinued without leave: O 22 r 2 Federal Court Rules. 7 On 29 May 2003 a judge of this Court made the following orders: '1. Leave be granted to the applicant to discontinue the proceedings. 2. The application will stand discontinued as of today, the notice of discontinuance having earlier been filed and served.' 8 On 11 July 2003 the applicant filed a notice of motion seeking to have his application reopened. 9 The applicant's former solicitor did not dispute that the notice of discontinuance had been filed without instructions. 10 On 2 October 2003 Mansfield J made the following orders: '1. The notice of discontinuance dated 26 May 2003 be set aside. 2. The orders made on 29 May 2003: (a) giving leave to file and serve the said notice of discontinuance; (b) that the application do stand discontinued, the said notice of discontinuance having been filed and served; and (c) that the applicant pay the costs of the first respondent; be set aside. 3. The former solicitor for the applicant Mark Wallis Clisby pay to the applicant costs of the application from 9 July 2003 to the date of these orders. 4. The former solicitor for the applicant Mark Wallis Clisby pay to the first respondent costs of the application from 9 July 2003 to the date of these orders, and costs of and incidental to the directions hearing on 29 May 2003. 5. The application be listed for further directions on a date to be fixed. 6. Liberty to apply is given to any party.' 11 On 5 November 2003 the matter came before Mansfield J who dismissed the applicant's application for an extension of time for the issue of the constitutional writs. Mansfield J found that the High Court Rules, and the time limits prescribed by those rules, applied on the hearing in relation to applications for the issue of the constitutional writs. 12 His Honour concluded that, by reason of O 55 r 17 of the High Court Rules, an application for a writ of certiorari must be instituted within six months of the decision which is sought to be quashed. Under O 55 r 30, an application for a writ of mandamus must be issued within two months of the refusal of the RRT to hear the matter. No time limit is prescribed for the issue of a writ of prohibition. Mansfield J acknowledged a concession made by the applicant's counsel: '… that if certiorari in particular is not granted to quash the Tribunal's decision, there would be no basis upon which a writ of prohibition should issue.' He said: 'Consequently, in my judgment, it was necessary for the applicants on the application to have sought and obtained an extension of time within which to have brought the application for the writs of mandamus and certiorari before the application could be entertained.' 13 He treated the application before him as including an application for an extension of time within which to issue the application. He noted that the applicant had previously sought judicial review of the RRT's decision but that had been dismissed on 27 June 2000 by Wilcox J: Arachchige v Minister for Immigration and Multicultural Affairs [2000] FCA 928. The applicant had appealed to the Full Court of the Federal Court against the dismissal of that application but that appeal was dismissed on 23 February 2001: Dambagolla Arachchige v Minister for Immigration and Multicultural Affairs [2001] FCA 121. Subsequently, the applicant had sought special leave to appeal to the High Court but that application was refused by McHugh and Gummow JJ on 15 February 2003. McHugh J said: 'The Full Court correctly applied the relevant principles and there is no substance in the proposed grounds of appeal. In particular, there was no constructive failure by the Refugee Review Tribunal to exercise the jurisdiction conferred upon it. Accordingly, special leave to appeal must be refused with costs.' 14 Mansfield J accepted the applicant's previous proceedings in this Court and in the High Court as an explanation for the delay in bringing the proceedings in the High Court for the constitutional writs. Indeed, it must be noted that the application was brought in the High Court eight days before the application for special leave to appeal to the High Court. 15 We have not been told whether the Justices sitting on the application for leave to appeal were made aware of the other proceedings pending before that Court. 16 Mansfield J said he would have extended time for appeal if the application itself had merit. However, he noted a further concession made by the applicant's counsel: 'Counsel for the applicant has, however, acknowledged that the application instituted in the High Court and now remitted to this Court has no merit, that it has no real prospect of success.' 17 The application for an extension of time failed, not because of the applicant's inability to satisfactorily explain the delay but because the application itself was, as acknowledged by counsel, without merit. Mansfield J found that the applicant was out of time and that, in the circumstances, the justice of the case required the refusal of the application for an extension of time. 18 The orders made were: 1. Application for an extension of time within which to have instituted the application is refused. 2. Application dismissed. 19 On 25 November 2003 the applicant purported to appeal against that decision. 20 On 11 February 2004 the respondent filed a notice objecting to the competency of the appeal on the ground that the judgment sought to be appealed from was interlocutory and the applicant had not sought to obtain or obtained leave to appeal. 21 On 3 March 2004 the applicant filed an application for leave to appeal. 22 There can be no doubt that the orders made by Mansfield J on 5 November 2003 were interlocutory. The orders were made in response to an application for an extension of time within which to apply for the issue of the constitutional writs. The orders did not finally dispose of the matter. The applicant needs leave pursuant to O 52 r 10 of the Federal Court Rules. He could have applied to Mansfield J for leave but did not. 23 The application for leave to appeal is out of time (O 52 r 10(2)(b)) and, therefore, the applicant needs an extension of time within which to apply for leave to appeal from Mansfield J's decision refusing an extension of time within which to institute proceedings in the High Court of Australia for the issue of the constitutional writs. An extension of time to seek leave to appeal would not be granted if there were no prospects that the application for leave to appeal would succeed. 24 It is necessary, therefore, to consider the application for leave to appeal before deciding whether to grant the application for the extension of time. 25 The Full Court of this Court, in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 3 FCR 397, followed a decision of the Full Court of the Supreme Court of Victoria in Neimann v Electronic Industries Ltd [1978] VR 431 which held that, on applications for leave to appeal, the two principal considerations are: (a) whether in all the circumstances, the decision from which leave is sought is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (b) whether any substantial injustice would result if leave were refused supposing the decision to be wrong. 26 Mansfield J refused the applicant's application upon the concession made by the applicant that the application itself had no merit. 27 On this appeal, the applicant tendered two affidavits, one of which addressed the concession made by the applicant's counsel before the primary judge. 28 Whilst it is not clear from the affidavit, I think the applicant is asserting that his then legal advisor had no instructions to appear on his behalf before Mansfield J except to apply for an adjournment. He had no instructions to acknowledge that the application had no merit or no real prospects of success. 29 It is not possible for this Court to resolve a question of a disputed fact of that kind, especially on the limited information before the Court. The affidavit, upon which the applicant relied, was only filed in the Registry the day before the hearing of this application. The respondent had no opportunity to investigate the allegations made. The affidavit may give rise to a waiver of the legal professional privilege which otherwise would have attached to the communications between the applicant and his then legal adviser. 30 Rather than decide this application upon the concession made by counsel, it would be better for this Court to determine for itself whether the application has any merit or any prospects of success. 31 In doing so, the Court has not needed to resolve whether the previous proceedings in this Court and the High Court give rise to any form of estoppel under the Anshun principle or otherwise: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Nor has this Court needed to decide whether the High Court Rules fixing time limits for certiorari and mandamus apply or whether there are no time limits: Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89. 32 The course adopted by the Court is the best possible result that the applicant could achieve. It allows for his complaints to be considered by this Court on their merits. 33 The course adopted by the Court should not be seen as a course of action which is appropriate in other proceedings. 34 It is appropriate to have regard to the applicant's complaints in the proposed notice of appeal. 35 The applicant's particulars of the jurisdictional error made by the RRT are: 'a) Hearing of the Refugee Review Tribunal which was part-heard on 9 October 1998 was adjourned to the 12 October 1998 due to errors committed by the original interpreter. Although the errors by the original interpreter were acknowledged by the Tribunal it refused an application by the applicant's representative to re-hear the evidence taken on 9 October 1998, causing prejudice to the applicants [sic] case. b) The Tribunal interrupted the answers given by the applicant and deliberations made by the applicant's representative during the Tribunal hearing, thereby preventing the applicant from presenting his claims fully.' 36 On this application, the applicant's second affidavit (which he has called an 'amended affidavit') supported an application to amend his proposed notice of appeal. This affidavit was also filed on the day before the hearing of this application. The application to amend the proposed notice of appeal needs only be considered if, in fact, leave to appeal is given. However, an amended notice of appeal was filed with the affidavit, and it gives as a further particular par (c) which should also be addressed on its merits: 'c) While the Tribunal, in making its decision as to the [sic] my credibility has very heavily relied on the lack of response from the MEP relating to the enquiries made by the Tribunal with regard to the authentication of MEP documents submitted by me, it failed to inform me that adverse finding as to his credibility would be made upon such lack of response and give him opportunity to comment.' 37 Wilcox J dealt with the matter in (a) in [15] and [16] of his reasons: Arachchige v Minister for Immigration and Multicultural Affairs [2000] FCA 928. Wilcox J also dealt with the question of bias, which is raised in paragraph (b) above, in [11] and [12] of his reasons. 38 Notwithstanding that those matters were previously considered by a judge of this Court and the Full Court and, in the context of a special leave application, by the High Court, this Court will address them again. 39 The applicant claimed before the RRT that he was a 38 year old man of Singhalese ethnicity and an adherent to the Buddhist religion. The applicant claimed he was born with the surname of Wimalaweera, the son of Upali Wimalaweera. He completed his schooling in 1976, after which he became a trainee in construction. In June 1980 he joined the Navy as an able seaman. He had a younger brother who also enlisted in the Navy. The applicant remained in the Navy for just short of two years and was discharged in May 1982. He remained unemployed until January 1984 when he took up studies to become a printer. In 1986 he bought his own business, which he operated until December 1995. 40 The LTTE is a Tamal separatist movement. The JVP is a party strongly opposed to separation. The People's Alliance is presently in government. 41 The applicant claimed that during his time in the Navy, he was a member of a platoon which captured the LTTE leader, Kuttimani at Point Pedro in 1981. He claimed that the LTTE had sworn to kill everyone involved in that incident. 42 He said that his younger brother had been the Commanding Officer of a Navy vessel which was attacked by the LTTE on 29 August 1993. He produced newspaper articles which stated that a vessel had been attacked and all 11 personnel on board had been reported missing in action. Curiously, the Commanding Officer in those articles was said to be Captain Ratnayke. 43 The applicant said that, as a result of death threats made to him and because of his involvement in the capture of Kuttimani, he changed his name to Dambagolla Arachchige. 44 He said that he and his father were both actively involved in politics in Sri Lanka and both had joined the Mahajana Eksath Permuna Party (MEP) which is strongly opposed to the LTTE and any attempt to divide the country. He claimed that his father had stood as a candidate for that party in the August 1994 elections. 45 The application before Mansfield J was, in part, for an extension of time within which to institute the proceedings for the constitutional writs. The applicant was obliged, on that application, to satisfy the primary judge that there were good reasons why the proceedings had not been instituted within time and that the applicant had some prospects of success if an extension of time were granted. 46 As I have already said, Mansfield J was satisfied with the applicant's explanation for the delay in instituting the proceedings. His Honour found against the applicant on the concession made by counsel. 47 His Honour could also have found that there was no information whatsoever to support the applicant's claim that the RRT had committed jurisdictional error in the determination of this application. There was nothing before him, nor is there before this Court, to indicate that any of the grounds which are relied upon in the notice of appeal have any basis in fact. 48 The applicant has presented no evidence to support the claims of procedural unfairness contained in the particulars. He has filed an affidavit in which he has referred to the hearing before Wilcox J and some of his Honour's remarks during that hearing. He has also provided the Court with a copy of the transcript of the hearing before Wilcox J. 49 Of course, nothing that was said to or by Wilcox J has any relevance in relation to the applicant's present application. 50 Although the applicant relies upon comments made by Wilcox J in that application, it has to be remembered that, in the end result, his Honour dismissed the application for judicial review. 51 The applicant provided a number of documents to the RRT and also gave oral evidence. The applicant claims that on the first occasion the interpreter made a number of errors. I accept that the matter was adjourned for the reason given by the applicant but there was no evidence before the primary judge, or before this Court, that the interpreter's errors in any way prejudiced the applicant in the presentation of his case to the RRT. 52 There is no evidence before this Court that there were any errors committed by the original interpreter which prejudiced the applicant in the presentation of the applicant's case before the RRT. True it is, as it is claimed, the RRT did not recommence the whole hearing but the matter was adjourned to allow the applicant to present his case through an interpreter. 53 The obligation on the RRT was to accord the applicant procedural fairness. It did that by adjourning the proceedings and arranging for a different interpreter. It was entitled to proceed as it did. Indeed, on the second day of the hearing the applicant was invited to restate his claims. 54 The second matter complained of is also unsupported by any evidence. No attempt was made to put a transcript before the primary judge, or before this Court, to verify the complaint made in the proposed notice of appeal. 55 The fact of the matter is that the RRT found against the applicant because it did not believe most of his claims. It gave the applicant a number of opportunities to verify the claims which he made. It heard evidence on two separate occasions. After hearing the applicant's evidence, the RRT member wrote to the applicant on 16 November 1999 setting out 'some problems which I have in accepting your claim for a protection visa'. The letter then detailed what the RRT indicated it was having difficulty in accepting. 56 There is no evidence at all to support a finding of apprehended bias. 57 Insofar as the second proposed ground is a claim of apprehended bias, it must fail. 58 The RRT attempted to contact the MEP on 15 November 1999. It was concerned that a letter produced by the applicant on MEP letterhead, dated 23 October 1998, was not genuine. The letter was later referred to by the RRT as publishing a 'LTTE hit-list'. 59 The RRT wished to have the MEP confirm that the letter was genuine. However, despite a number of faxes from the RRT to the MEP, no reply was received. 60 In the RRT's letter of 16 November 1999 to the applicant, the RRT wrote: 'I also have some doubts about the genuineness of the letters which you have provided on MEP letterhead. One of the letters states that you are on a recently published LTTE hit-list. As I have difficulty accepting this claim, I also have difficulty accepting that the letter is genuine. The most recent letter is addressed from the MEP headquarters in Colombo and has your postal address in Australia. However, it appears to have been faxed to you from a business address in Kandy. Furthermore, even if I accept these documents at face value, they all state that you are at risk because of your anti-LTTE activities (which, as noted above, I have great difficulty accepting); none of them suggest that you are at risk of harm from the government or the People's Alliance because of your membership of the MEP. This letter also states that your father was attacked by thugs in 1992, something which you have never mentioned yourself. Even if I accept your claims regarding you [sic] MEP membership at face value, according to your own evidence, the worst thing that has happened to you since you joined the party in 1994 appears to have been verbal abuse from drunks during the 1994 elections. As pointed out at that hearing, the MEP continues to be a legal political party in Sri Lanka. I am aware that violence between parties occurs during election campaigns and occasionally at other times. However, it [sic] not my understanding that PA death squads or anyone else is seeking to eliminate MEP members. I also note your evidence that it is ordinary party members, not leaders such as you claim to be, who are generally at risk of harm and that your father, who appears to be a more prominent party member that [sic] you, continues to live in Sri Lanka and has not suffered persecution. In these circumstances, it does not appear that you are at risk of persecution from the government or the PA in Sri Lanka.' 61 The RRT recorded the applicant's reply to these matters of concern in its reasons: 'With regard to his recent political involvement, Mr Dambagolla said that he was the Chief Organiser of the MEP in the Kandy district and leader of the party in the Central Province. He added that confusion regarding his role may have arisen because for the purposes of parliamentary elections Kandy District and Central Province cover the same area and have an allocation of 20 seats in the national parliament. He was in charge of the 20 organisers in Kandy District or Central Province. The fact that he and his father lived with the MEP leader in 1993 was not mentioned in earlier statements because it was not possible to mention all details in these statements. With regard to the 1992 assault on his father, he said that he had not mentioned it because no such incident occurred in 1992. As stated in the letter the incident took place between 1994 and 1998. [The letter states that Mr Dambagolla Arachchige's father was assaulted while on a train after his book, Balu Poraya was published in 1997. The Tribunal's letter should have read 1997, not 1992]. With regard to the letter from the MEP, Mr Dambagolla Arachchige maintained that it was a genuine document. He said that it had been faxed from a business in Kandy because it had been obtained by his father who is a resident of Kandy and used the businesses fax machine because he does not have one of his own.' 62 The RRT made it clear in its letter that it doubted the genuineness of the applicant's claims of his involvement with the MEP. The applicant was advised that the RRT doubted that the letter from the MEP was genuine. 63 When the RRT wrote to the applicant it was not in a position to advise the applicant of the MEP's failure to reply to its inquiry. The initial request was only made the day before it wrote to the applicant. In my opinion, the RRT was entitled to write to the MEP to verify the accuracy of the letter. In its reasons, the RRT said: 'In reaching this conclusion I have considered the letters allegedly sent by the MEP. I find these letters to be fraudulent documents manufactured by or on behalf of Mr Dambagolla Archchige [sic]. In the first place, they repeat claims which I have found to lack credibility (I do not believe that Mr Dambagolla Arachchige has been targeted by the LTTE for his role in the capture of Kuttimani or his anti-separatist views). Secondly, while they appear to have been written and signed in Colombo, where the MEP headquarters are located, they were faxed from a business in Kandy. Furthermore, as noted above, the Tribunal sought confirmation from the MEP that the letters had been sent by them. There is no doubt that the Tribunal's request was received by the MEP office as a Tribunal officers [sic] spoke to an employee of the organisation by telephone. However, the MEP did not respond to the Tribunal's letter. I do not believe that the MEP leader would write two letters of support for Mr Dambagolla Arachchige and then fail to confirm that they were genuine, particularly if Mr Dambagolla Arachchige and his father were leading members of the MEP and close associates of the leader. And even if I am wrong and these letters were written by the MEP leader, I can only conclude the [sic] he was prepared to provided [sic] false evidence for Mr Dambagolla Arachchige for some reason. There is nothing in these letters which alters my view on the credibility of Mr Dambagolla Arachchige's claim that he has been targeted by the LTTE.' 64 It found the documents, including the letter of 23 October 1998 fraudulent for a number of reasons, one of which was the failure of the MEP to respond to its inquiry. 65 It was permissible to use the MEP's failure to respond in the way in which the RRT did. It would be expected if the documents were genuine that the MEP would acknowledge them to be so. The RRT did not have to warn the applicant that it might use the MEP's failure to respond as a reason for rejecting the letter as genuine. A Tribunal is not obliged to put in advance to an applicant every step in its reasoning process. 66 But, even if the RRT did have that obligation, its failure to do so had no practical effect. 67 The RRT would have still made the same finding without relying on the failure of the MEP to respond. 68 Moreover, the failure was only one of a number of reasons for the RRT's finding that the documents were fraudulent and manufactured by or on behalf of the applicant. 69 As well, this was only one of a number of reasons for finding that the applicant was not a credible witness and that he had fabricated or exaggerated much of his evidence. 70 It can be seen, therefore, that even if the RRT was under a duty to warn the applicant that it might use the MEP's failure to respond adversely to the applicant and that amounted to procedural unfairness, the applicant cannot demonstrate that it would have led to any different result: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 at [36] per Gleeson CJ. 71 In those circumstances, putting the applicant's case at its highest, the applicant cannot show any entitlement to relief. The application has no prospects of success. The concession made by counsel before Mansfield J was rightly made. 72 I would therefore refuse the application for an extension of time within which the applicant has to seek leave to appeal from Mansfield J's order. 73 I would also dismiss the application for leave to appeal against the decision of Mansfield J refusing an extension of time to institute the application and dismissing the application. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Counsel for the Applicant: The Applicant appeared in person