Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

De Smith's Judicial Review of Administrative Action (4th ed, 1980); (5th ed, 1995) E Campbell, "Judicial Review and Appeals as Alternative Remedies" (1982) 9 Monash University Law Review 14 APPLICANT M16/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 747 of 2003

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS

REASONS FOR JUDGMENT 1 The male prosecutor, his wife and their two children (collectively the "prosecutors") are citizens of Sri Lanka. The male prosecutor and his wife left Sri Lanka in 1983 and 1988 respectively and met in France, where they married in 1990. In the following year they were granted refugee status by the French authorities on the basis that there was a real risk that they would be persecuted on account of their Tamil ethnicity if required to return to Sri Lanka. The prosecutors then came to Australia in July 1994. Three held travel documents (Titre de Voyage) issued under Art 28 of the Refugees' Convention and the eldest child held a French passport. The travel documents have since expired. On 30 August 1994, the prosecutors applied for asylum claiming they were refugees to whom Australia owed protection obligations under the Convention. The basis for their claim was feared persecution on account of their ethnicity if they returned to France. The applications were refused by a delegate of the Minister and his decision was affirmed by the Refugee Review Tribunal. The prosecutors did not immediately seek to review the tribunal's decision. Instead, they applied to the Minister under s 417 of the Migration Act 1958 (Cth) (the Act) for protection visas. These applications were unsuccessful. In 1999 the prosecutors applied to the High Court for review of the tribunal's decision. That application (which was brought out of time) was remitted to the Federal Court on 26 May 1999 and in due course was dismissed on its merits: Sivaneeswaran v Minister for Immigration & Multicultural Affairs [2000] FCA 322. Thereafter, the prosecutors became members of the group represented by the applicants in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966. On 8 August 2002 judgment in that case was handed down in favour of the applicants and directions were given to enable the prosecutors to challenge the tribunal's decision in this court. 2 There are two preliminary matters arising out of this history that must be addressed. The first arises because the present application, like the earlier proceeding (Sivaneeswaran v Minister for Immigration & Multicultural Affairs [2000] FCA 322) is brought out of time. Order 55 rr 17 and 30 of the former High Court Rules, which govern this application, provided, respectively, that applications for certiorari must be made within six months and applications for mandamus within two months of the impugned decision. The court has power to enlarge the time (Order 60 r 6) and this is what the prosecutors seek, but the Minister says that power should not be exercised. The first matter is the resolution of this dispute. The second preliminary matter is whether the prosecutors are precluded from bringing this application at all on the basis of the so-called Anshun estoppel: Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589, 602-603. 3 On the question of delay, the grant of prerogative relief (now referred to as "constitutional writs" by judges, as for example in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 93 as well as in the Federal Court Rules, though certiorari is not mentioned in s 75(v) of the Constitution) is discretionary and can always be refused if the prosecutor is guilty of undue delay. This proposition was recognised but not created by rules of court such as O 55 and statutory provisions like s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The need for expedition was explained by Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237, 280-281. He said that "[t]he public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision". See also R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593, 1608 per Lord Steyn: ("[T]here is a need for public bodies to have certainty as to the validity of their actions. That is the rationale of [the delay rule]"). 4 Generally, then, it will be for the prosecutor to show that he acted reasonably or sensibly in all the circumstances in not bringing his or her application within time. In an exceptional case, the court may allow an application for judicial review to proceed out of time even though the prosecutor has failed to show any good reason for extending time: R v London Borough of Newham, Ex parte Ajayi [1994] 28 HLR 25. I think that is what McHugh J had in mind when in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470, 474 he said that: "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." I do not take McHugh J to mean, for the High Court Rules did not provide, that an extension of time can only be granted in exceptional circumstances. 5 It is also important not to lose sight of the fact that, according to the authorities, there are certain types of cases (of which this is one) where the court will not apply the time rule too strictly. In other words, there are cases where the court will grant an extension of time for a reason that would not suffice in other cases. In Mariam Ahmad Haruna Said Simba v Secretary of State for the Home Department [1999] Imm AR 356, 357 Lord Woolf MR said: "Normally, in the case of asylum seekers, this court will be circumspect about being too rigorous in applying the normal principles of judicial review in relation to delay because the court appreciates that to refuse an application for [permission] to apply for judicial review solely on the grounds of delay may have very grave consequences for the asylum seeker". In R v Secretary of State for the Home Department; ex parte Bina Rajendra Patel [1995] Imm AR 223, 227 Brooke J said: "I entirely accept that it is very dangerous for an [asylum seeker] to allow more than three months to go by before challenging the relevant decision … However, if [permission] is granted, and the court, at the substantive stage finds that there was something seriously defective, as a matter of law, with the decision then, in the present context of an immigration case, as opposed to the context of a case where an overturning of an administrative decision might have an effect on a wider number of people … , in my judgment, it would be unlikely that the court would refuse to grant [a remedy] simply because the application, which has been granted [permission], was made too late". 6 One reason for the delay in the present case, but not a reason that explains the whole delay, is that the prosecutors applied to the Minister under s 417 for a more favourable decisions than that given by the tribunal. Section 417 allows the Minister to substitute his decision for the decision of the tribunal if it is in the public interest to do so. The Minister says that the time taken up by an application under s 417 will not constitute good reason for the delay. To the contrary, so the argument goes, the application itself indicates that the applicant has accepted the tribunal's decision. 7 To place this submission in its proper context it is necessary to refer to some old rules. It is a well-settled principle that judicial review is a proceeding of last resort. If there exists an alternative procedure, such as an appeal or another administrative process, by which the substantive issue in dispute can be resolved, that procedure should ordinarily be taken in preference to judicial review. So important is this rule that a court will sometimes refuse to entertain an application for judicial review until the alternative proceeding has been exhausted. I need only cite a few of the better-known cases that have referred to or applied this principle: R v Paddington Valuation Officer; Ex parte Peachey Property Corporation Ltd [1966] 1 QB 380; R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720; Chief Constable of The North Wales Police v Evans [1982] 1 WLR 1155; In re Preston [1985] AC 835; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523; Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829. See also E Campbell, "Judicial Review and Appeals as Alternative Remedies" (1982) 9 Monash University Law Review 14. 8 It necessarily follows, and in any event there are cases that support the proposition, that if a party seeks an alternative means of obtaining redress, that is an alternative to judicial review, and those means prove to be unsuccessful, that will constitute good reason for obtaining an extension of time. As to the cases see: R (On the Application of Burkett) v London Borough of Hammersmith and Fulham [2001] Env LR 684, 693: ("Judicial review is in principle a remedy of last resort. It follows, as it always does when a potential applicant for judicial review expeditiously seeks a reasonable way of resolving the issue without litigation, that the court will lean against penalising him for the passage of time and will where appropriate enlarge time if the alternative expedient fails"); R v University College London; Ex parte Ursula Riniker (1995) ELR 213, 215: ("The discretion to enlarge time beyond the ordinary 3 months is one which will be sympathetically approached by the court where the applicant in the meantime has not been sleeping on her rights but has been attempting to canvass them by other legitimate means"). See also Doyle v Chief of General Staff (1982) 42 ALR 283, 287; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-349; R v Stratford-on-Avon District Council, Ex parte Jackson [1985] 1 WLR 1319, 1323; R v H. M. Customs and Excise, Ex parte Eurotunnel Plc [1995] COD 291, 294; Australian Petroleum Pty Limited v Australian Competition and Consumer Commission (1997) 73 FCR 75, 84. 9 Notwithstanding this principle there are several Federal Court decisions which have taken the view that making an application under s 417 before moving for judicial review is no excuse for delay. The first case is Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576, a decision of von Doussa J. In dealing with an application for an extension of time von Doussa J at [9] said without any explanation or discussion. "I do not think the delay is satisfactorily explained by the fact that the applicant hoped during [the period of delay] to get a favourable exercise of the Minister's power under s 417. The application under s 417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequences of the delay that occurred." A similar approach was taken by Gray J in an ex parte decision, Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684, which was handed down a few days later. In that case Gray J said at [9]: "So far as the delay between the decision of the Tribunal and the commencement of proceedings is concerned, the only explanation given in the affidavit of the applicant involves her attempt to procure a favourable decision from the Minister, pursuant to s 351 of the Migration Act [which is substantially the same as s 417]. I note that the pursuit of that course by the applicant would have tended to suggest that the applicant was prepared to accept as correct the decision of the Tribunal, and that she did not intend to avail herself of the machinery that then existed under the Migration Act to seek judicial review, or to seek remedies from the High Court, in relation to it. It seems to me that, to await the decision of the Minister under s 351 and then to attempt to seek relief in the High Court in relation to the decision of the Tribunal, was to take inconsistent courses." These and other cases to a like effect were referred to with apparent approval, but also without any analysis, in an obiter opinion of the Full Court in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [16]-[24]. 10 The reason the judges rejected the proffered explanation for the delay is not readily apparent. One possible interpretation for their reasoning is that the applicant had "waived" his or her right to review the impugned decision. Here I use the word "waiver" in its strict sense of an intentional act to abandon a right by acting in a manner inconsistent with that right: Craine v The Colonial Mutual Fire Insurance Company Limited (1920) 28 CLR 305, 326. Two comments might be made if this is what was intended. First, it is not possible to waive a jurisdictional defect in procedure: David Jones v Ellis Owen (1848) 5 Dowl & L 669, 674 [79 RR 888, 892]; In re Knowles v Holden (1855) 24 LJ Ex 223, 224 [101 RR 909, 910]. I appreciate that there are one or two examples where an appeal to a higher tribunal without raising any complaint about defects in the original decision was held to be a waiver of judicial review. The cases that I have in mind are R (County Council of Kildare) v Commissioner of Valuation and Great Southern and Western Railway Company (1901) 2 IR 215, 230-231 and R (Doris) v Ministry of Health & Local Government and the Northern Ireland Health Services Board (1954) NI 79. There may be others. In the fourth edition of De Smith's Judicial Review of Administrative Action (1980) it was suggested (at 423) that these cases would not apply if the impugned decision was "invalid" as, for example, where a decision is affected by jurisdictional error. In the fifth edition of De Smith's textbook this discussion and the cases have been dropped. In any event, and this is my second comment, it would be impossible to find that a person waived his rights simply because he made an application under s 417. That is not to suggest that in a rare case such an application may not amount to a waiver. Assume the unlikely circumstance of an applicant who informs the Minister that he is not a refugee, that the tribunal's finding that he is not a refugee is correct and that its decision does not suffer from any error of law or fact, but nevertheless the applicant should be granted a visa on public policy grounds. Perhaps that would result in a waiver in the strict sense. But of course the example is fanciful. In the real world an application under s 417 is much more likely to be made on the basis that the tribunal has made a terrible mistake, that its findings of fact are wrong and usually also that it has erred in law and for those reasons the Minister, has no alternative but to intervene. 11 Perhaps the judges did not have in mind waiver in the strict sense. What the quoted passages also imply, especially the extract from the decision of Gray J, is that they were approaching the case as one of waiver by election. In Sargent v ASL Developments Limited (1974) 131 CLR 634, 641, Stephen J explained that "[this] doctrine only applies if the rights are inconsistent the one with the other and it is this concurrent existence of inconsistent sets of rights which explain the doctrine; because they are inconsistent neither one may be enjoyed without the extinction of the other and that extinction confers upon the elector the benefit of enjoying the other, a benefit denied to him so long as both remained in existence". Accordingly, if this were truly a case of election, the applicant would have lost his right to review. However, for the right to be lost, there must be alternative courses of action available that are inconsistent with one another. An application under s 417 is not in any sense inconsistent with an application for judicial review. It is a right which can be pursued before, concurrently with, or after proceedings for judicial review. 12 The only other meaning that I can attribute to what was said is that certain conduct, of which an application under s 417 is an example, may be ignored when deciding whether there is good reason for extending time. Of course I accept that there can be conduct which indicates that an applicant does not intend to take judicial review proceedings to quash a decision, but will seek to achieve his object of getting around the decision solely by other means. If one encounters conduct of that kind the conduct will not excuse delay. Those cases, which will be rare, would not in my respectful opinion include the mere making of an application under s 417. To hold otherwise is inconsistent with both principle and authority. 13 At days end, I must decide whether the prosecutors have adequately explained their delay in applying for judicial review. If the delay is explained an extension of time may be granted. I see no basis upon which it would be proper for me to ignore the applications to the Minister. More importantly, I am concerned that if I were to ignore those applications I would fall into error. Notwithstanding what was said in Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576; Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and in other like cases, I am not entitled to ignore evidence that is relevant to the exercise of a discretionary decision. 14 Finally, before I leave this topic I wish to dispose of a point made by Dr Donaghue on behalf of the Minister. He said that on an application for an extension of time it is not proper to have regard to the merits of the substantive application. I think he is wrong. It is always important to keep an eye on the merits of such applications. Not only is this position consistent with common sense (for example why would a judge ignore the fact, if it is a fact, that a review application is hopeless) it is also consistent with authority (see Sayers v Clarke Walker (a firm) [2002] 1 WLR 3095) including the authority of refugee cases (for example R v Secretary of State for the Home Department; Ex parte Bina Rajendra Patel [1995] Imm AR 223, 227). 15 The second preliminary point is whether the prosecutors are entitled to mount a second challenge to the tribunal's decision having lost their first. The ordinary rule is that a party must bring all his claims on one subject matter in a single proceeding. The claims which must be brought are those of which the claimant is aware and those of which by the exercise of reasonable diligence he should be aware: Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589, 601-603. There is no reason why this rule should not be applied to applications for judicial review. The rule has no application if the prosecutors did not know, and had no basis for suspecting, the existence of other complaints about the tribunal's procedures. Just as lack of knowledge is a factor to be taken into account on an application for an extension of time (as to which see R v Secretary of State for the Home Department, Ex parte Ruddock [1987] 1 WLR 1482, 1485; R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte World Development Movement Ltd [1995] 1 WLR 386, 402-403) so also is it to be taken into account in determining whether there is an Anshun estoppel. 16 In all the circumstances I propose to deal with the prosecutors' application on its merits and it is to the merits that I now turn. 17 Both in the proceeding before the tribunal and before me this case was argued on the assumption that as a result of Art 1E of the Convention, the prosecutors having been granted asylum in France the Convention obligations would not apply to them unless they fell within one of the exceptions. The exceptions were discussed by the UNHCR Executive Committee - 40th Session (58g). One exception is where the putative refugee fears persecution in his first country of refuge. This is the basis of the prosecutors' claim. They say that in France they face constant threats and harassment amounting to persecution from the Liberation Tigers of Tamil Eelam ("LTTE") and that the French authorities are unable or unwilling to protect them. 18 For this reason the tribunal identified the issue for determination to be whether the prosecutors were persons to whom Australia had protection obligations despite Art 1E of the Convention. The tribunal stated that: "Clearly, it is not intended that a person who technically has certain rights and obligations but faces serious harm in his first country of refuge should be excluded by Article 1E in the second country in which he applies for protection." The tribunal then referred to conclusion No. 58(g) of the UNHCR Executive Committee - 40th Session which states that: "It is recognised that there may be exceptional cases in which a refugee … may justifiably claim that he has reason to fear persecution or that his physical safety or freedom are endangered in a country where he previously found protection. Such cases should be given favourable consideration by the authorities of the State where he requests asylum." Following this discussion, the tribunal considered whether the prosecutors' faced a real chance of persecution in France by members of the LTTE and whether the French authorities were unable or unwilling to protect them from that risk of persecution. The tribunal concluded that "the chances that the Applicant faces harm at the hands of the LTTE in France are remote. In the event that he is harassed, he can obtain effective protection from the French authorities, in the same manner as a French national can access such protection." Accordingly, the tribunal affirmed the delegate's decision. 19 The prosecutors challenge the tribunal's decision on three grounds. First, the prosecutors claim they were misled by the Registrar of the Tribunal relation to documents known as the "Part B documents" being before the tribunal. The prosecutors say that these documents were beneficial to their claims and had they known the true position (that is that the documents were not before the tribunal) they would have done something about it. The second ground is that the tribunal misled the prosecutors in relation to the reliance it would place on a cable numbered CE510121/PA106788 (16/5/95; 29/5/95) from the Department of Foreign Affairs and Trade (the "No Violence Cable"). This cable discounted the level of violence of the LTTE in France and contradicted the prosecutors' claims. The No Violence Cable was received by the tribunal during the course of the hearing. It is alleged that statements made by the member led the prosecutors to believe that the cable would be unimportant to their case when in fact (it is claimed) the cable was critical to the tribunal's decision. Finally it is said that the tribunal's decision involved an exercise of power that was so unreasonable that no reasonable person could have so exercised the power, or that it was irrational or illogical in that it was based on findings not founded on logically probative evidence. 20 The first ground fails for any number of reasons. The Part B documents included an Amnesty International Report 1995 ("Amnesty Report"), an article "Tiger Circus Going Places", published in The Sunday Times on 14 May 1995 ("Tiger Circus"), another on "The Exclusive Right to Eelam History: The Murder of Sabalingam" published in Island International on 11 May 1994 ("Island International"), and DIEA Country Information Service data holdings, ref. LKA2494 (the DIEA Country Information). On 9 October 1995, a Deputy Registrar of the Tribunal wrote to the prosecutors stating that: "[t]he Tribunal has considered all the papers relating to your case but it is unable to make a favourable decision on this information alone …" Putting to one side what may be taken from this sentence, it was admitted that four of the Part B documents were not physically transferred to the tribunal. That leaves open the question whether the tribunal obtained those documents from other sources, as commonly occurs. To establish that this had not occurred, the prosecutors sought to rely on an admission constituted by the failure of the Minister within the time specified by O 11 r 20 to dispute the allegation in the prosecutors' Notice to Admit Facts that the documents had not come into the possession of the tribunal. The Minister had served a notice disputing that fact but the notice was one day late. The reason for the delay was that one of the documents in issue (the DIEA Country Information) could not be located. In any event, on the day the response was due a lawyer from Clayton Utz, the solicitors acting for the Minister, telephoned the prosecutors' counsel and advised him that the facts in the Notice to Admit would be disputed and that a notice to that effect would be served the following day. In those circumstances I will not permit the prosecution to rely on O 18 r 2(2). To the extent necessary I will extend the time within which the Minister's notice was to be filed. 21 The prosecutors then say that I should infer that the documents were not considered by the tribunal because they were not referred to in its reasons. I am not prepared to draw that inference. Not all documents that a tribunal reads (and often it has many documents available to it) must be referred to in its reasons. If documents important to a particular claim are not referred to the inference might be drawn. But the documents in question here, apart from the country information, are not documents that are particularly important. As to the country information it is simply impossible to form a view about its important because the document cannot be located. For all I know the documents may be quite irrelevant to any issue before the tribunal. 22 At any rate, the key issue is whether the prosecutors were misled into thinking the tribunal had considered the Part B documents and as a consequence of being misled were denied the opportunity of presenting the documents to the tribunal: NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465, 470. Two issues are thereby raised: (1) Was the Registrar's registered letter misleading?; and (2) Were the prosecutors misled by the letter? 23 In assessing whether the Registrar's letter was misleading, it is important to distinguish the facts here from those in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966. In Muin's case two letters sent by the tribunal led to the claim of misrepresentation. The first letter stated that the tribunal had actually asked for a copy of the Part B documents (Muin's case) or that it had asked for them to be sent (Lie's case). The second letter said that the tribunal had considered "all the materials relating to your application". On the basis of that correspondence, it was conceded that each applicant believed that the tribunal had the Part B documents. There is no "first letter" in this case. And I am far from satisfied that the registrar's letter was misleading in the sense that it represented to the reader that the tribunal had available to it the Part B documents. 24 In any event, I do not accept that the letter in fact mislead the prosecutors. Under cross-examination the male prosecutor (whose English, I acknowledge, is not good) said that when he read the letter he paid no particular attention to the sentence dealing with the material before the tribunal. In fact, the substance of the letter was explained to him by his brother-in-law and it does not seem that his brother-in-law made any reference to the Part B documents. When asked whether he had ever seen the list of Part B documents in the delegate's decision, he replied: "No I don't remember to have seen this particularly." When asked if he had seen the Amnesty International document, he replied that he had not seen the document before 29 October 2003. The prosecutor also failed to recognise the Tiger Circus or the Island International articles. 25 Moreover, even if I were to accept that the prosecutors had been misled about the Part B documents, I doubt whether they would have done anything about it. The prosecutors' central argument was that the Part B documents supported their case and they would have taken steps to bring those documents to the tribunal's attention. On a fair reading of the documents, it is difficult to see how they supported the prosecutors' case. The Amnesty Report gives an overview of the war in Sri Lanka. Although this would have supported a claim that the prosecutors could not return to Sri Lanka, it is not relevant to the prosecutors' claimed fear of persecution in France. The Tiger Circus article describes the fundraising activities of the LTTE in Europe but says nothing to suggest any threats of violence from that group in France. The Island International article, which discusses the murder of Mr Sabalingam (a well known critic of the LTTE) in Paris, was heavily relied upon. It was argued that although there was no political association between the male prosecutor and Mr Sabalingam, the male prosecutor had sought assistance from him on a few occasions and there was therefore a perceived association with him. Thus it was said that the article describing his murder would corroborate that the male prosecutor's claims of fear of persecution in France were well founded. In my view, however, the article does not support the prosecutors' claims. The article highlights the fact that Mr Sabalingam had distinguished himself from other Tamils in Paris by collecting evidence to write a "comprehensive book" critical of the LTTE. There was nothing in the article suggesting that other Tamils in France were at risk of assassination or violence. I do not accept that having some sort of tenuous connection with Mr Sabalingam would elevate the prosecutors to Mr Sabalingam's level of renown. In any event, the facts referred to in this article were discussed by the tribunal in its reasons. 26 Turning to the second ground (that the tribunal misled the prosecutors about the use of the No Violence Cable) the No Violence Cable was given to the prosecutor's representative midway through the hearing. The No Violence Cable responded to questions about LTTE harassment of Tamils in Paris as follows: "The official noted that he was not aware of violent incidents in France concerning extortion and other similar acts by the LTTE…. Refugees had, like other French citizens, resort to the law and police protection if they were being threatened …". The prosecutors' complaint is that when their representative expressed some concern about the No Violence Cable, the member said: "The [prosecutor's] case is not going to stand or fall on the information in that cable." 27 In my view what the tribunal said would happen was not misleading: it was precisely what occurred. First, the tribunal relied on several documents to determine the scope of French police protection including the information from the US Department of State Report Country Reports on Human Rights Practices for 1994 (Washington DC 1995) (the "USSD Report"), a number of newspaper articles as well as the No Violence Cable. The information from the USSD Report and newspapers refer to the vigour with which the French authorities protect local residents. In determining whether the prosecutors had reason to fear persecution in France, the tribunal relied on many categories of information. It included the evidence of the prosecutors, the fact that they had visited Australia in 1993 and returned to France the same year and a number of newspaper articles in addition to the No Violence Cable. In this context, the No Violence Cable was not critical to, or decisive of, the tribunal's findings. That is all the member meant when he said: "The [prosecutor's] case is not going to stand or fall on the information in that cable." 28 The prosecutors also say if they had known the tribunal was going to rely on the No Violence Cable, they would have asked for time to submit further information to contradict its contents. However, the prosecutors were appraised of the contents of the document during the course of the hearing. The substance of the cable was read aloud and a copy was handed to their representative. The hearing was then adjourned to allow them time to consider the document. Following the adjournment it was not suggested that the prosecutors wanted to make further submissions about the cable. Even if the prosecutors had been given the opportunity to address the No Violence Cable, what would they have done? Both the USSD Report and newspaper articles go further than the No Violence Cable in indicating the availability of protection from French authorities. The prosecutors did nothing to contradict that evidence. I cannot accept that the prosecutors would have acted any differently in relation to the No Violence Cable. 29 Finally, even if I had found in favour of the prosecutors on any of the procedural fairness issues, I would not set aside the tribunal's decision because to do so would be futile at least on the assumption that Art 1E has application. The tribunal found the prosecutors had the same rights and protections afforded to all French nationals, save for citizenship and the right to apply for certain jobs which required potential job applicants to be French citizens. They also had the option of applying for full citizenship after five years of residency. In those circumstances, having regard to the unchallenged findings of the tribunal the application for refugee status was bound to fail. 30 In VRAW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133 at [18] I said that as a general rule, a State should have a system of law which makes attacks by persecutors punishable and that a State should also have law enforcement agencies that will enforce those laws. See also Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 494. In relation to French law enforcement agencies, the tribunal considered the US Department of State Report, Country Reports on Human Rights Practices for 1994, Washington DC 1995, which discussed the extensive military and security apparatus in France. The report stated that "[t]he Constitution extensively provides for human rights, and the Government has a good record of investigating and prosecuting violations of these provisions". 31 In VRAW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133 at [18] I also cited cases which held that the obligation of the State is not absolute. In Osman v United Kingdom (1998) 29 EHRR 245, the European Court of Human Rights (at 305) said that: "[t]he Convention may … imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another … . … [S]uch an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities". According to Lord Hope in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 500: "The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals". Therefore the test for asylum is not whether there is perfect protection available in the State where the putative refugee is living but whether there is adequate and equally accessible protection. The tribunal found, as a fact, that the French authorities provide extensive protection to French residents. It also found that the prosecutors, as refugees, had equal rights to access that protection. On these facts the prosecutors' claim for refugee status cannot succeed. 32 The prosecutors' final ground of complaint is that that tribunal's decision was unreasonable, irrational and illogical. I am bound to reject this complaint. A fair reading of the tribunal's reasons suggests to me that its findings were supported by the evidence and its reasons do not indicate any want of logic or irrationality. Even if they did, the Full Court has held that want of logic does not constitute an error of law and cannot constitute a ground for judicial review: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, 420-422; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]-[29]. 33 This is not, however, an end of the application. Last week the High Court handed down its decision in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6. What was said in that case may, I do not put it any higher than that, affect the assumption on which the parties argued this case, namely that Art 1E applied to the prosecutors. I propose to give to the prosecutors the opportunity to make further submissions on this issue if they be so advised. Therefore I will hear the parties on what directions should be made. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate: Dated: 8 March 2005 Counsel for the Applicant: Dr P Vout