Applicant M221/2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant, a Sri Lankan national of Tamil ethnicity, arrived in Australia on 22 September 1996 on a three month visitor visa. On 6 December 1996, that visa was extended to 22 June 1997. On 10 April 1997, she lodged with the first respondent an application for a protection visa. In substance, she claimed that if she returned to Sri Lanka she faced a real chance of persecution at the hands of the Sri Lankan authorities by reason of her Tamil ethnicity, and because those authorities would impute to her a particular political opinion as a supposed supporter of the Liberation Tigers of Tamil Eelam ("the LTTE"). She relied upon four specific incidents, which she claimed had occurred in her life, as evidence that her fear of persecution was well-founded. 2 On 10 September 1997, a delegate of the Minister refused the application. On 26 September 1997, the applicant lodged an application for review with the Refugee Review Tribunal ("the Tribunal"). On 30 October 2000, the Tribunal conducted a hearing at which the applicant, who was represented, gave evidence. On 27 July 2001, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. 3 On 23 August 2001, the applicant filed with this Court an application for review of the Tribunal's decision. That application was ultimately heard by Gray J. Because it was filed prior to the commencement, on 2 October 2001, of the privative clause amendments to the Migration Act 1958 (Cth) ("the Act"), the "old" Pt 8 of the Act applied. 4 By amended application, dated 28 September 2001, the applicant provided particulars of her grounds of review. These are set out at [19] in the judgment of Gray J, whereby his Honour, on 30 May 2002, dismissed the application: see [2002] FCA 683. His Honour described these particulars as being in substance as follows: "(a) the Tribunal erred in not determining that the detention and questioning of the applicant, together with harassment and threats after the Central Bank bomb blast in early 1996, was persecution for reasons of race or political opinion within the meaning of the Convention; (b) the Tribunal erred when it said that it was "not convinced" that the applicant was detained as she alleged in what I have described as the fourth episode; (c) the Tribunal erred in not finding that the repeated detention and questioning, especially at checkpoints, of the applicant, and the Tamil people in general, amounted to persecution, or might amount to persecution in the reasonably foreseeable future; and (d) the Tribunal erred in failing to determine whether the length of absence of the applicant from Sri Lanka would give rise to well-founded fear of persecution for a Convention reason should she now return to Sri Lanka." 5 It is important to note that the applicant did not appeal from Gray J's judgment dismissing her application for review. However, on 21 June 2002, the applicant filed with the High Court, an application for constitutional writs in respect of the Tribunal's decision. Her draft order nisi set out various grounds of judicial review, all of them cast in the most general of terms. The only particulars that were provided were as follows: "… persecution within the meaning of the definition of a refugee under the Refugees Convention, as incorporated by reference to section 36 (2) of the Migration Act 1958 could occur as a result of being an imputed supporter of the LTTE." 6 On 7 February 2003, the High Court (Hayne J) ordered that the further proceedings in that application be remitted to this Court. On 23 April 2003, Marshall J ordered that the applicant file and serve an amended application by 15 May 2003, and any contentions of fact and law by 22 May 2003. On 20 June 2003, four days before the application was scheduled to be heard, the applicant wrote to the Court withdrawing her application, and indicating that she was prepared to pay the reasonable costs of the Minister. That letter was treated by the Court as being, in substance, a notice of discontinuance that met the requirements of O 22, r 2 of the Federal Court Rules. Under O 22, r 3, a party who discontinues a proceeding is liable to pay the costs of the other party or parties occasioned by the proceeding. Under O 22, r 7, an order for discontinuance does not operate as an extinguishment of the action, or in any way bar further proceedings: see SZFOG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1374 per Edmonds J at [16]-[18]. It may, however, be relevant when determining whether the institution of such further proceedings amounts to an abuse of process. 7 On 18 July 2003, less than a month later, the applicant filed with the High Court a second application for constitutional writs in respect of the Tribunal's decision. In that second application she sought orders for the issue of writs of prohibition and certiorari. On 26 February 2004, Hayne J ordered that the further proceedings in that second application be remitted to this Court. His Honour further ordered that the application proceed in this Court as if the steps already taken in the High Court had been taken in this Court. It is that second application that constitutes the proceeding before this Court. 8 In the present proceeding, the draft order nisi sets out various general grounds of judicial review. The document was apparently prepared without legal assistance, and is, for that reason, somewhat uninformative. So too are the applicant's contentions of fact and law, filed prior to the hearing, which focus in part upon several passages in the judgment of Gray J in the earlier proceeding in this Court. In those passages, his Honour referred to "unsettling aspects of the Tribunal's reasons", in particular, its use of the expression that it was "not … convinced of the truth of some aspects of the applicant's evidence". His Honour also found that the Tribunal had made various factual errors, but went on to explain why the application before him could not, in any event, succeed. The applicant's written contentions relied, in part, upon his Honour's observations. However, they did not identify any error on the part of the Tribunal that might give rise to jurisdictional error. 9 It is obvious from what is set out above that the applicant faces a series of hurdles in seeking to have this Court set aside the Tribunal's decision. In the first place, several of the matters of which she now complains were raised, in substance at least, before Gray J, and determined adversely to her. As previously indicated, there was no appeal from his Honour's judgment. 10 In addition, the very matters that the applicant now seeks to agitate were all raised in her initial application for constitutional writs in the High Court. That application contained the same grounds, and the same particulars to those grounds, as are raised in the present proceeding. The fact that the applicant ultimately discontinued that proceeding after it had been remitted to this Court creates a difficulty, so far as she is concerned, regarding the success of this application. 11 It can be argued that at least so much of the present application as was determined against the applicant by Gray J is barred by the doctrine of res judicata. His Honour's judgment was a final judgment, dealing essentially with at least some of the very same matters that the applicant now seeks to rely upon. Her failure to appeal that judgment may represent an insuperable obstacle to at least that part of her case. 12 Alternatively, even if it can be said that the present proceeding is based upon a cause of action that differs in certain respects from the case that was determined by Gray J, so that the doctrine of res judicata does not apply, it is at least arguable that principles of issue estoppel, or Anshun estoppel, prevent these claims from being pursued. See generally Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; see also VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018 at [10]-[14]. 13 The applicant was not represented before me. She said that she had signed the 20 June 2003 letter indicating that she wished to withdraw her application for review in circumstances where she had not appreciated the effect of adopting that course. She was not legally represented at the time, and had merely been given informal advice by a migration agent. She claimed, in relation to this proceeding, that she had approached a lawyer to act for her, but had been told that there was some impediment to that lawyer doing so. She indicated that the lawyer had expressed concern about being personally liable for any costs that might be incurred in pursuing the litigation. 14 I must say that I have some difficulty in accepting this account in its entirety. Nonetheless, even if what I was told was correct, the applicant still faces difficulties in pursuing this application. 15 Putting to one side questions of res judicata and issue estoppel, the applicant must explain why she did not commence proceedings seeking constitutional writs until approximately two years after the Tribunal's decision. Her explanation that she thought she had initiated an appeal from Gray J's judgment when she first issued proceedings in the High Court, if accepted, goes part of the way towards answering the delay that has ensued. The proceedings in the High Court were brought shortly after Gray J's judgment was delivered. The fact remains, however, that the applicant ultimately discontinued that proceeding, and then reinstated it. There is no escaping the fact that there was a delay of approximately two years between the Tribunal's decision, and the filing of the application for constitutional writs. A delay of that length requires both adequate explanation, and some justification. 16 Different views have been expressed as to whether, when the High Court remits a matter of this type to this Court, the time limits that are provided for under the High Court Rules are applicable to this Court. If those time limits are applicable, the applicant must seek an extension of time within which to bring this proceeding. If the time limits are not applicable, no formal application for an extension of time is required, but the question of delay will still be relevant when considering whether to refuse relief in the exercise of the Court's discretion. 17 Order 55, r17(1) of the High Court Rules provides that that an application for an order nisi for a writ of certiorari must be brought within six months of the decision under challenge. Order 60, r 6(1) enables a judge to enlarge time. However, the discretion thereby conferred must be exercised judicially. 18 In Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641, Gray J expressed doubt as to whether the time limits contained in the High Court Rules were applicable once a proceeding had been remitted from the High Court to this Court. In that regard, it should be noted that there are no specific time limits in the Federal Court Rules within which applications for certiorari must be brought. 19 If the time limits set out in the High Court Rules are applicable to this proceeding, the principles that govern the exercise of the power to enlarge time under those rules were outlined with great clarity by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491. In particular, his Honour observed that a case "would need to be exceptional" before the time for commencing proceedings was enlarged by many months. In deciding whether or not to enlarge time, the Court may take into account any explanation for the delay in commencing proceedings, and the applicant's prospects for success in the proceedings. Moreover, as the constitutional writs are directed at the acts or decisions of public bodies or officials, the public interest requires that there be an end to litigation regarding the efficacy of such acts or decisions. 20 At [16] of his reasons for judgment, McHugh J observed: "Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court." (footnotes omitted) 21 In Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132, a Full Court (Heerey, Dowsett and Bennett JJ) cited these comments of McHugh J, and said at [8]: "Applying those observations and, by analogy, the time limits in the High Court Rules to the present case, relief should be declined for reason of delay." 22 It may be noted that the expression "by analogy" in the passage set out above lends support to Gray J's view that the time limits set out in the High Court Rules do not ordinarily apply to matters that have been remitted to this Court. It is, of course, possible that the judge who remits the matter to this Court will order that those time limits do apply. However, that did not occur in this case. 23 I should add that although the applicant seeks an order nisi for a writ of prohibition, as well as an order nisi for a writ of certiorari, and there is no specific time limit in the High Court Rules in relation to prohibition, it is plain that she can gain no comfort from this. Prohibition is not an appropriate remedy when challenging a decision of the Tribunal that has already been made. There is nothing left to prohibit. Once the Tribunal has made its decision, it has no further function to perform. 24 If the order nisi for a writ of prohibition is directed to the Minister, seemingly with the intention of preventing her from giving effect to the Tribunal's decision, the remedy may, nonetheless, be inappropriate. In Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 ("Reyes"), McHugh J held that even if certiorari was granted to quash the Tribunal's decision, there should be no order for prohibition against the Minister. His Honour said at [23]: "there is no ground whatever in a case such as the present for the issue of a writ of prohibition against the minister. As was conceded, as the law stands at the moment and on the facts of the case, the minister was under a duty, in accordance with s 198 of the Migration Act 1958 (Cth) (the Act), to deport the applicant. No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error." 25 McHugh J went on to say that the proper remedies in a case in which a decision of the Tribunal is challenged are certiorari and mandamus, both of which should be directed to the Tribunal. 26 The reasoning in Reyes seems difficult to reconcile with the later decision of Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 in which his Honour accepted the possibility that prohibition might be an appropriate remedy in cases of this type. 27 It is unnecessary for me to express any concluded view regarding the divergent approaches taken in these two cases. As will shortly be seen the applicant's claim for an order nisi for a writ of prohibition fails for other reasons. 28 Moreover, I do not consider it necessary determine this case on the basis of res judicata, issue estoppel or abuse of process. Nor is it necessary to resolve the question whether time should be enlarged (if the High Court Rules are applicable), or whether relief should be refused as a discretionary matter by reason of delay (if those rules are not applicable). 29 The real difficulty that confronts the applicant is that she is unable to point to any jurisdictional error on the part of the Tribunal that would justify setting aside its decision. 30 During the course of oral argument, the applicant handed up a written document headed "Submission" which purported to identify errors in the Tribunal's reasoning that would warrant the issue of constitutional writs. The document is in the following terms: "1. It is submitted that the Tribunal erred in applying the wrong test in determining whether the applicant had a well founded fear of persecution. The Tribunal in its findings and reasons stated that the treatment of the applicant after the Central Bank bombings and from time to time at checkpoints did not amount to persecution indicates that the Tribunal did not have a proper understanding of the word persecution. It is submitted that the action suffered by the applicant were based upon the authorities profiling her as a Tamil likely to be a supporter of the LTTE or even as a member of that organization. 2. The use by the Tribunal of words suggesting that "it was not convinced" of the Applicant's evidence that she was arrested and detained twice following the DEHIWELA bombing. This suggests that the Tribunal was imposing an onus of proof upon the applicant. 3. The Tribunal failed to apply the real chance test as to what might happen in the future. 4. The Tribunal treated as trivial events suffered by the applicant i.e. detention by police and being stopped at checkpoints. It is suggested that the events the applicant complained of amounts to a well founded fear of persecution. 5. It is submitted that the Tribunal asked the wrong questions and applied the wrong tests in determining whether the four series of events the applicant complained of amounted to a well founded fear of persecution for a convention reason." 31 It should be noted that at least the first two points set out in the submission were dealt with by Gray J at [20]-[25] of his Honour's judgment. This proceeding is not, of course, an appeal from that judgment. Nonetheless, I have had regard to what his Honour had to say about these issues, and I can see no basis for arriving at any different conclusions. 32 Gray J found, at [23], that the Tribunal had correctly understood that the notion of persecution, to which the Refugees Convention refers, necessarily contemplates that there is a real chance that a person will suffer "some serious punishment or penalty or some significant detriment or disadvantage". His Honour noted that the Tribunal had also referred to the need to demonstrate selective harassment (which may, in appropriate cases, include single acts of oppression, serious violations of human rights, and measures in disregard of human dignity). His Honour concluded that although the Tribunal's references to these principles "were in standard form", there was nothing to indicate that it had not applied them in its reasoning. He found that it had been open to the Tribunal to conclude that any harm that the applicant may have suffered had not been inflicted because of any of the Refugees Convention reasons. 33 Gray J also dealt specifically, and in terms, with the second point now made by the applicant in her written submission. His Honour concluded that, when read in context, the passage containing the expression "not … convinced" did not suggest that the Tribunal had erroneously imposed an onus of proof upon the applicant. 34 With respect, I agree with both these conclusions. It follows that neither of the first two points raised in the applicant's submission can succeed. 35 The remaining three points set out in the submission can fairly be described as either being insufficiently particularised to identify any reviewable error, or as merely inviting merits review. Accordingly, those contentions must be rejected. 36 For the reasons set out above, the application must be dismissed, with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.