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Applicants M6/2002 v The Honourable Philip Ruddock, Minister for Immigration... [2003] FCA 1071 | Case summary | Zoe

CTHFCA

Applicants M6/2002 v The Honourable Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1071

Federal Court of Australia|2003-10-07|Before: Marshall J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2003-10-07

Before

Marshall J

Source

Original judgment source is linked above.

Judgment (8 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicants commenced this proceeding in the High Court of Australia on 15 January 2002. The proceeding was remitted to this Court on 1 August 2002. The application was supported by an affidavit sworn by the applicants' solicitor. That affidavit made the following points:

the first applicant applied to the Refugee Review Tribunal ("the RRT") constituted by the second respondent to review a decision of a delegate of the first respondent to refuse him a protection visa.
on 8 March 2001 the second respondent affirmed the decision of the delegate.
the RRT's decision included jurisdictional error.
the first applicant was notified of the decision "on or after 23rd March 2001".
due to "financial difficulties" the first applicant did not apply to this Court within the 28 day time limit provided by the Migration Act 1958 (Cth) ("the Act"), for a review of the RRT's decision.
on 12 June 2001 the first applicant requested the first respondent to exercise his discretion under s 417 of the Act to substitute a more favourable decision than the decision of the second respondent.
on 20 December 2001 the first respondent rejected the applicant's s 417 application.
the application was commenced in the High Court because of this Court's lack of power to extend the time in which an application may be made to the Court to review a decision of the RRT.
the first applicant did not apply earlier to the High Court because he was awaiting the first respondent's decision under s 417. 2 The affidavit did not disclose that the first applicant applied to this Court on 19 April 2001 to seek judicial review of the RRT decision. That application was dismissed by consent on 18 May 2001. 3 The application sought the following relief:
a writ of prohibition directed to the first respondent;
a writ of certiorari directed to the second respondent;

the RRT took into account irrelevant considerations and failed to take into account relevant considerations. 9 The applicants require an extension of time so that they may bring this application. The observations made in Applicant M78/2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 726 at [4] to the end of the first sentence at [9] are applicable to this proceeding. At those passages the Court said that: "4 The proceeding in the High Court was filed out of time. The High Court did not grant an enlargement of time. Rather, it ordered that further proceedings in the application be remitted to this Court and that the application proceed in this Court, as if the steps already taken in the High Court had been taken in this Court; see also s44(1) of the Judiciary Act 1903 (Cth). 5 Order 55 of the High Court Rules provides a two month time limit for the writ of mandamus and a six month time limit for the writ of certiorari. Order 55 rule 30 provides that: "An application for a writ of mandamus, or an order in the nature of mandamus, to a judicial tribunal to hear and determine a matter shall be made within two months of the date of refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice." 6 Order 55 rule 17(1) of the High Court Rules provides that: "An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal ... shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be presented by any law." 7 Order 60 rule 6(1) of the High Court Rules provides: "A Court or Justice may enlarge or abridge the time appointed by these rules ... for (the) doing (of) an act upon such terms, if any, as the justice of the case requires." 8 There is no question as to whether this Court has the power to enlarge the times fixed by the High Court rules for bringing a writ of certiorari or mandamus; see Re Ross; ex parte Australian Liquor Hospitality and Miscellaneous Workers Union [2001] FCA 770 at [39], (2001) 108 FCR 399 at 409. 9 As noted in Re Ross at [38], FCR 409, there is no time limit in the High Court Rules concerning an application for a writ of prohibition …". 10 There is no time limit in respect of the applicants' reliance on a writ of prohibition directed to the first respondent not to give effect to the RRT's decision. If the RRT's decision is infected with jurisdictional error that relief will be granted. In those circumstances the Court, under s 23 of the Federal Court of Australia Act 1976 (Cth), would be empowered to grant ancillary relief including that the decision of the RRT be set aside and that the matter be remitted to the RRT to be heard and determined in accordance with law. 11 Consequentially, it is academic to consider whether to extend the time within which the Court would allow the applicants to apply for the other relief they seek. It will therefore only be necessary to revisit the question of extension of time if the decision of the RRT is infected with jurisdictional error. 12 The first applicant is a citizen of Sri Lanka. He is in his mid 40s. He entered Australia on 22 August 1996, together with his wife and child. He first applied for a protection visa on 4 October 1996. That application was refused. The matter finally found its way to a second RRT hearing which occurred on 6 March 2001 and led to the decision of 8 March 2001 which is under challenge in this proceeding. 13 The first applicant claimed that he feared persecution at the hands of Sri Lankan government forces if returned to Sri Lanka, on account of his Tamil ethnicity and his being imputed with a political opinion favourable to the Liberation Tigers of Tamil Eelam ("the LTTE"). 14 Prior to coming to Australia the first applicant and his spouse ("the second applicant") lived in Germany for over three years. He claimed that he had no right to return to Germany, but that if he was returned he feared persecution at the hands of neo-nazis, from whom German authorities would not be able to provide adequate protection. 15 The main claims made by the first applicant before the RRT were:

there is not a real chance that she would be detained and persecuted in the reasonably foreseeable future if returned to Sri Lanka. 18 Counsel for the applicants initially in written submissions raised issues concerning the RRT's decision, but only with respect to the claims of the second applicant. Those submissions were revised so that it was contended that in assessing the first applicant's claims the RRT failed to apply the correct test to determine a well founded fear of persecution and that the RRT's decision, in respect of both applicants, was unreasonable. 19 Counsel submitted that the RRT failed to take account of a relevant consideration by failing to state whether the beatings the second applicant suffered amounted to persecution. The RRT will commit a jurisdictional error if it fails to take into account a relevant consideration in circumstances where its "exercise or purported exercise of power is thereby affected": Craig v The State of South Australia (1995) 184 CLR 163 at 179. See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351. 20 In my view the RRT did not err by failing to take into account a relevant consideration, being a consideration that it was bound to take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. 21 The RRT was prepared to assume that the beatings and death occurred but considered that the ability of the second applicant to remain, without harassment in Negombo between November 1991 and April 1993, indicated that she was not of interest to the authorities. It was not necessary in the circumstances for the RRT to make a finding whether the beatings amounted to persecution. The RRT did not fail to take into account a relevant consideration in a way that affected the exercise of its power by failing to consider whether the beatings amounted to persecution. 22 It was contended that in respect of the first applicant the RRT accepted that he was "detained for interrogation about a robbery", but that it made no reference to the claim that he was interrogated "at gun point" or his mistreatment during the interrogation. The failure of the RRT to be more descriptive about the interrogation than it might have been takes the applicants' submission no further. The point is that the RRT accepted that there was interrogation. The method or manner of the interrogation was not in issue and a failure to refer to it more fully does not disclose any legal error which may be remedied in this Court. The critical point is that the RRT also viewed the first applicant as being of no material interest to the authorities. 23 The submission of counsel for the applicants is not improved by being recast in terms of a failure in the RRT to properly assess the claims of the applicants. Those claims, on a fair reading of the RRT's decision were properly assessed. 24 Counsel for the applicants submitted that the RRT failed to apply the real chance test set out in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. This issue is not properly before the Court given that it is not contained within any of the grounds of review in the order made by the High Court on 1 August 2002. In any event, I do not consider that the RRT failed to apply the real chance test. The RRT specifically referred to Chan Yee Kin at p.6 of its reasons and to the judgment of Keely J in Mok v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1, which in terms referred to "a real chance of persecution". Specifically at p.13 of its decision the RRT said that: "Taking into consideration all of the available evidence, the Tribunal is not satisfied that there is a real chance either of the Applicants will be detained and persecuted in the reasonably foreseeable future, should they return to Sri Lanka. The Tribunal finds that neither of them faces a real chance of persecution in Sri Lanka on account of their Tamil race or their imputed political opinions or their membership of a particular social group comprising of Tamils." (emphasis supplied) 25 Counsel for the applicants submitted in the alternative that the decision of the RRT was unreasonable. I reject the "unreasonableness" submission as an attempt to engage the Court in impermissible merits review. In any event, this submission appears to be an alternative way of expressing the contention that the RRT failed to apply the correct test, a submission that was rejected in the preceding paragraph. 26 In my view the proceeding must be dismissed, with costs. It is unnecessary to consider whether the proceeding is effectively barred by the dismissal by consent of the proceeding issued in the Court on 19 April 2001 or whether the proceeding is moot having regard to the death of the second applicant after the decision of the RRT. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.