Applicants A216 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is a notice of motion seeking an extension of time within which to apply for relief in the nature of a writ of certiorari to quash a decision of the Refugee Review Tribunal (the Tribunal) given on 27 June 2001, affirming a decision of a delegate of the first respondent not to grant to the applicants protection visas for which they had applied under the Migration Act 1958 (Cth) (the Act). The application seeks associated relief to which it is not necessary to refer. 2 The applicants are husband and wife and their daughter. The decision of the Tribunal was given on 27 June 2001 and notified to the applicants on 13 July 2001. The application to the High Court was made on 19 September 2002, well out of time. The relevant time limits are prescribed in O 55, rr 17 and 30 of the High Court Rules. In the case of an application for an order nisi for a writ of certiorari the time limit is six months from the making of the decision complained of. 3 The matter was been remitted to this Court by the High Court of Australia on 7 February 2003. The circumstances of the remitter, the relevant procedural considerations (including time limitations under the relevant rules) and the principles to be applied in a matter such as the present, are discussed by von Doussa J in Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 567. I gratefully adopt his Honour's remarks on those matters. Counsel were content to accept that his Honour had accurately and appropriately described the relevant procedural considerations and principles. 4 On the application for an extension of time, counsel for the applicants has focused on two issues - the reasons for the delay, and the merits of the application. 5 The reasons for the delay are threefold. The first is that the applicant husband claims to have changed his address and not to have received notification of the Tribunal's decision, which I accept was notified to him as required by the Act on or shortly after 13 July 2001. It is unnecessary to refer to the circumstances or provisions in the Act dealing with notification. His affidavit in support of the application accepts that he received notification of the Tribunal decision 'later during the year', that is during 2001. His application is still considerably out of time. 6 The second explanation for the delay is that the applicant husband had applied to the first respondent following the Tribunal's decision, under s 417 of the Act, requesting the first respondent to exercise his public interest power under that section and grant to him and his family a protection visa - that is, to substitute a result more favourable to their circumstances than that reached by the Tribunal. He also said that he received a response from the first respondent 'later during the year'. Again, I take that to be later during 2001, so that the delay in instituting proceedings during 2002 is not explained by that matter. 7 In any event, I am not persuaded that an application under s 417 provides an explanation for delay, because in the absence of any evidence that the applicants considered that the application under s 417 was part of the routine procedural process so that time was not running against them for an application of the nature now before the Court, it is simply an extraneous fact. Indeed, an application under s 417 may indicate that the applicants did not perceive error on the part of the Tribunal which went to the exercise of its jurisdiction so as to entitle them at that time to apply to quash the Tribunal decision. 8 Thirdly, there is the fact that following the Tribunal's decision the applicants sought judicial review of the Tribunal's decision in this court. The application was dismissed on 31 January 2002: Shehu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 35. An appeal was brought to the Full Court. That appeal was dismissed on 23 August 2002: SCAC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 279. The application to the High Court was instituted quite promptly after the dismissal of the Full Court appeal, although the application to the High Court was not an application seeking leave to appeal from the Full Court decision. 9 For the reasons explained by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte 'A' (2002) 185 ALR 489, [2001] HCA 77 at pars [33] and [34], it is appropriate to have regard to the fact that the applicants sought judicial review of the Tribunal's decision in this Court both at first instance and on appeal, and that following the resolution of the Full Court decision the application to the High Court was brought promptly. For the reasons discussed by Kirby J in that decision, in my view it is appropriate to accept that explanation for the delay in instituting these proceedings. Consequently, as counsel for the applicants urged, I do not consider the delay should be used in any way adverse to the applicants on consideration of the present motion. 10 The other issue which counsel for the applicants addressed was as to the merits of the application. It is clear that as a matter of principle the Court should address the question of whether, if the extension of time sought is granted, the applicants would have any prospects of success on the application. It is, of course, a big step on an application for an extension of time to determine that there are no such prospects. I am mindful that the material which would be before the Court if the application itself were coming on for hearing might be considerably more extensive than that which is now before the Court. The information before the Court is essentially limited to the Tribunal's reasons for its decision and that which the applicants chose to present through the affidavit of the applicant husband in support of the notice of motion. 11 However, there is no information presented by the applicant husband in that affidavit which addresses the issue as to whether the applicants have any prospects of success on the present application, if the extension of time is granted. Counsel for the applicants has identified the ground upon which it is said that the Tribunal exceeded its jurisdiction to be that it failed to accord procedural fairness to the applicants in the making of its decision. I accept that such a failure on its part can give rise to the Tribunal exceeding its jurisdiction: see Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24. 12 In this instance, counsel for the applicants contends that the particular failure to accord procedural fairness is because the Tribunal, in making its decision, had regard to material which is adverse to the applicants' claims and which came into the possession of the Tribunal after their hearing, but which the Tribunal nevertheless took into account, without giving the applicants knowledge of the fact of that material or the opportunity to comment upon it. The proposition is presented as deriving from the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2001) 190 ALR 601; [2002] HCA 30 (Muin), in particular from the judgment of Gaudron J at par [64]. Her Honour said: 'There is a second aspect to procedural fairness in relation to Tribunal hearings, namely, a requirement that an applicant for review be given a reasonable opportunity to answer any material in the possession of the Tribunal which suggests that he or she is not a refugee as defined in the Convention. In reaching its decision in relation to Mr Muin, the Tribunal took into account information in a Department of Foreign Affairs and Trade cable … Mr Muin was not made aware of the submissions or of the cable. He was, thus, not given a reasonable opportunity to answer material in the possession of the Tribunal which suggested that he was not a refugee as defined in the Convention. 13 In the judgment of McHugh J in Muin, his Honour at par [134] quoted and adopted a passage which was in his Honour's judgment in Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at par [141] to the following effect: 'In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non‑adverse country information, favourable or corroborative information in the public domain, and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claims for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.' 14 In this matter, counsel for the applicants has referred to independent country information concerning the circumstances in Albania upon which, in part, the Tribunal reached the view that the applicants did not have a well‑founded fear of persecution if they were to return to Albania, notwithstanding the applicant husband's political interests. That information is quoted at length in the Tribunal's reasons. It is from sources all of which predate the hearing before the Tribunal on 27 March 2001. There is nothing to indicate that the Tribunal had regard to any independent country information relevant to the applicant husband's claim to fear persecution in Albania because of his political association or his perceived political association which was received by the Tribunal after the hearing. There is no evidence from the applicants to indicate that they were not aware that the Tribunal would be addressing that issue. Indeed, it is plain from the Tribunal's reasons that the applicants were aware that the Tribunal would be addressing the significance of the applicant husband's political involvement with what is called the 'Legality Movement'. That was part of the applicants' claim as presented to the Tribunal and is recorded by the Tribunal as having been discussed with the applicant husband in the course of the hearing. 15 The independent country information which the Tribunal quoted seems to equate in practical terms the Legality Party and the Democratic Party. Part of the Tribunal's discussion with the applicant husband at the hearing concerned country information about the Democratic Party. The clear association of those two nominally different entities is not something which, judging from the Tribunal's recital of the hearing as discussed with the applicant husband, would have taken the applicants by surprise. Nor is there any evidence from the applicants to suggest to the contrary. I note, further, that following the hearing the applicant husband made a further submission to the Tribunal on 5 April 2001, dealing with fears he had concerning police and criminal groups associated with the Albanian government. 16 There is an absence of any evidence at all from the applicants as to what they understood from the course of the hearing or in relation to the application generally, including what they understood from having been informed of the delegate's decision in the first place, about the issues they would have to address or the material upon which the Tribunal might rely and upon which they might wish to have commented. There is an absence of any evidence from the applicants as to what material was put to them in the course of the hearing. There is no evidence they were not aware of the material upon which the Tribunal relied in its reasons, or that they did not have an opportunity to comment on it. Consequently, it was necessary for counsel for the applicants to explore the proposition that the applicants were denied procedural fairness, and to demonstrate that the applicants had a sufficient basis - or any basis - to make out the proposition of fact upon which the contention is based, from an analysis of the Tribunal's reasons. 17 In my judgment, no such prospect is shown. The issue was alive prior to the hearing. The issue as to how persons in the applicant husband's position and with his political affiliations were treated in Albania was discussed during the hearing. There is nothing to indicate that the material to which the Tribunal had regard in the nature of independent country information was not available to it and discussed by it with the applicant husband and his witnesses during the course of the hearing. It is all information which is dated prior to the hearing. 18 In my judgment, it is not shown that the applicants have any prospect at all of showing that the adverse material to which the Tribunal had regard came into the possession of the Tribunal after its hearing. Nor is there shown to be any prospect of the applicants showing at the hearing of this application that the Tribunal had regard to adverse country information material of which the applicants were not aware and in respect of which they were not invited to comment. It would have been very easy for the applicants to make such an assertion by affidavit evidence if that were the case. 19 In my judgment, therefore, the application for an extension of time must fail. I propose to make the following orders: