Applicant M115/2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This proceeding was remitted to the Court by the High Court of Australia on 26 May 2003. In the High Court the applicant applied for constitutional writs directed to the respondents in respect of a decision of the Refugee Review Tribunal ("the RRT"), which refused the applicant a protection visa. 2 Paragraph 1 of the draft order nisi, omitting the grounds relied upon was as follows: "1. The first and second respondents DO SHOW CAUSE WHY A WRIT OF PROHIBITION should not be issued out of this Court directed to the first respondents (sic) prohibiting them from proceeding further with matter No V96/05122 in the Refugee Review Tribunal and WHY A WRIT OF CERTIORARI should not be issued out of this court directed to the first (sic) respondents removing into this Court to be quashed the decision made by them on the 27th day of February 1997 in the said matter and the order made by them on the 27th day of February in the said matter upon the grounds that …" 3 The reference to "the first respondents" occurring immediately after the mention of "CERTIORARI" appears to have been intended to be a reference to the second respondents, given that the relevant decision was one made by the RRT. 4 The RRT's decision is dated 27 February 1997. The applicant applied on three occasions thereafter for the first respondent to exercise his discretion to grant the applicant a visa. The last request was refused on 16 February 2000. Shortly thereafter the applicant was joined in representative proceedings in the High Court in the matter which became known as Muin v Refugee Review Tribunal [2002] HCA 30, (2002) 190 ALR 601. 5 On 9 October 2003, the Court ordered by consent that the application for an order nisi and the hearing of the return of the order nisi, if granted, be conducted as a single hearing. The order also provided that: "The applicant file and serve:

(b) any affidavits which the applicant intends to rely on at the hearing." 6 On 5 November 2003, the applicant filed a document entitled "contentions of law". He did not file any affidavit material. In his contentions the applicant contended that the RRT failed to accord him procedural fairness by relying upon "a number of cables relating to the [Janatha Vimukthi Peramuna party] in Sri Lanka … without giving [the applicant] the opportunity to respond to those materials." Restating the point by an alternative formulation, the applicant submitted that the RRT: "failed to give [him] particulars of information which the Tribunal considered or ought reasonably to have considered as a reason or reasons for affirming the decision under review." 7 At paragraph 13 of the applicant's contentions, the applicant said: "I do require an extension of time in which to file this application, as it would not be fair if I was stopped from making my arguments …" 8 By motion dated 26 November 2003, made returnable this afternoon, the respondents sought an order that the application be dismissed under O20 r2 of the rules of Court as disclosing no reasonable basis. In the alternative, an order was sought dismissing the application for failure to comply with an order of the Court. 9 The first question which arises under O 20 r 2 is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to file his application. I consider that it would be futile to grant the relief claimed against the first respondent. As Gray J said, in respect of a materially identical plea for relief in Re Batuwantudawa [2003] FCA 684 at [14]: "…the claim in the draft order nisi for prohibition is limited to the matter designated by its proceeding number in the Tribunal. The Tribunal has completed its dealing with that proceeding. There is nothing left to prohibit."

· it not now a militant force. 17 The RRT concluded this aspect of its reasons for decision by saying: "Having regard to this country information, and to the fact that the applicant has never been involved in the JVP, I find the chance of the applicant being persecuted by the authorities for imputed support of the JVP should he return to Sri Lanka is remote." 18 There is no indication in the reasons of the RRT that it gave the applicant an opportunity to comment on the country information before it made its decision. However, in the absence of any affidavit material from the applicant it is impossible to know whether it would have made any difference to his case if he had received prior notice of the country information referred to by the RRT. 19 As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

20 In Lam, the Chief Justice said at [38]: "No practical injustice has been shown. The applicant lost no opportunity to advance his case. …It has not been shown that there was procedural unfairness." See also per McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149]. 21 Similarly in this case the applicant has not shown what he would have said if the RRT had given him the country information to comment upon, assuming (without knowing) that it did fail to do so. The applicant said, in his oral submission today, that he is currently unable to get information from Sri Lanka. That is not the point. The issue is what he would have said to the RRT prior to its decision being given in 1997 or what he would have done if he had been shown the relevant country information before the RRT's decision. 22 I reject the second ground for the respondents' motion concerning failure to take a step required by an order of the Court. The applicant's contentions do particularise his procedural fairness point, which essentially is his only point. The extension of time is traversed in the contentions, albeit to the limited extent discussed above. The matter, had it proceeded to trial, given its lack of complexity would have been more appropriate to be dealt with by the Federal Magistrates Court and I would have so ordered. 23 In Applicant A17/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1080, the Court mentioned, in dicta, at [8] that: "I note that on 5 September 2003, I informed the solicitor for the applicant that as the decision of the Refugee Review Tribunal subject to challenge was made prior to 2 October 2001 the proceeding was incapable of being transferred to the Federal Magistrates Court on account of it not having jurisdiction in such matters until that time. On that basis I made order No 2 of the orders made on 5 September 2003. It is not appropriate to transfer the proceeding in these circumstances and given that there has been failure to comply with what, in effect, was a self executing order the application stands dismissed."

(2002) 190 ALR 601

(2003) 195 ALR 502