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[2005] FCA 176
Federal Court of Australia
2005-03-07
Heydon J, Stone J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of a single judge of this Court dismissing an application for a draft order nisi. It would appear that the applicant has brought these proceedings on behalf of herself and her three children. As the claims under the Refugee Convention are those of the applicant mother, like the Refugee Review Tribunal ('Tribunal'), I shall refer to her as 'the applicant'. The application for leave was not filed within the time required. That being so the applicant must show why she should be granted an extension of time within which to make the present application. 2 The applicant arrived in Australia on 16 May 2001 with her three children. On 6 June 2001 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs (as it then was). On 13 June 2001 a delegate of the Minister for Immigration and Multicultural Affairs ('delegate') refused her application. On 5 July 2001 the applicant applied to the Tribunal for review of the decision of the delegate. The applicant also lodged written submissions in support of her application. The Tribunal affirmed the decision of the delegate and handed down its decision on 18 December 2001. The applicant filed an application for a draft order nisi in the High Court of Australia on 5 November 2003. On 16 February 2004 that application was remitted to this Court by an order of Heydon J. On 29 October 2004, the primary judge dismissed the application.
Tribunal's decision 3 The primary judge set out the correspondence between the Tribunal and the applicant leading to the Tribunal's decision at paragraphs [5] to [7] of her Honour's judgment. I respectfully reproduce that summary: 'On 28 September 2001 the Tribunal wrote to the applicant, informing her: "The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons." She was advised that, if she wished to come to a hearing, it would be on 6 November 2001. The letter also stated that, if she did not attend the hearing, the Tribunal may make a decision on her case without further notice. By a further letter of 5 November 2001, the applicant was advised that the hearing would now be held on 12 November 2001. The same warning about the consequence of non-attendance was included in that letter. It is not in dispute that the applicant did not contact the Tribunal in response to the letters nor did she or her children attend at the hearing.' 4 The Tribunal noted the history of the matter and proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act'). In its reasons, the Tribunal noted that the applicant had been telephoned on 5 November 2001 and informed of the hearing date of 12 November 2001. 5 The applicant's claims, in short, were based on activities she had undertaken with the New People's Army ('NPA') in the Philippines. She claimed that she informed the NPA of her intention to withdraw from her association with them and feared harm from the NPA because of her failure to continue to be of assistance to them. In addition, the applicant claimed that the authorities could not protect her from that harm and that she could not relocate as the NPA would seek her out wherever she lived in the Philippines. 6 The Tribunal accepted that the applicant assisted the NPA for a number of years, until at least 1991, and continued her involvement with the NPA at a reduced level until 1995. However, the Tribunal found it implausible, based on independent country information, that the applicant was subjected to the threats claimed. The Tribunal also noted that the applicant lived in Manila prior to her departure to Australia. Based on independent country information that the NPA was no longer a major threat to the Philippines government, the Tribunal found it implausible that the NPA would use its limited resources to hunt down the applicant. Independent evidence before the Tribunal indicated that the NPA regularly suffered splits and defections and as a result the Tribunal found that the applicant would merely be one of the many Philippine citizens who had become disenchanted with the NPA and has chosen not to support it. The Tribunal also found that on the applicant's own evidence she was never a member of the NPA. In light of these findings and evidence, the Tribunal concluded that the applicant's fears were not well-founded. 7 Given the above conclusion, the Tribunal found it unnecessary to address the applicant's claims that as she was not prepared to assist the Philippines government with any information she might have, she feared not being able to access the government witness protection program. This was found to be irrelevant as the Tribunal concluded that she was not in need of such protection.
Primary judgment 8 At the hearing before the primary judge of 19 October 2004, the applicant was represented by counsel. The sole ground pressed at that hearing was a claim of denial of procedural fairness in that the applicant was not aware of what information the Tribunal considered in addition to that considered by the delegate. Counsel for the applicant submitted that the rules of procedural fairness, independent of s 424A of the Migration Act 1958 (Cth) ('the Act'), required the Tribunal to inform the applicant of the additional independent country information which it proposed to and did take into account. Counsel referred to the word 'alone' in a sentence in the letter of 28 September 2001 referred to at paragraph [3] above in the quoted passage. The sentence said: 'The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.' 9 Counsel submitted that this amounted to a representation that the Tribunal would not look at any additional information. 10 The primary judge rejected the applicant's claim of a failure to accord procedural fairness. Her Honour held that no such representation was made by the letter of 28 September 2001. To the contrary, her Honour was of the view that the letter in fact amounted to an invitation to the applicant to present additional information. 11 The primary judge referred to the following statement of the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]: 'There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that.' 12 Accordingly, her Honour held that there was no jurisdictional error in relying on and referring to country information. The primary judge also stated at paragraphs [21] - [22] of her judgment: 'Further, the applicant was told by the Tribunal that it could not make a decision in her favour on the basis of the material before it. The applicant chose not to attend. If the Tribunal had not considered any additional country information but only the country information already in the Department's file, it is reasonable to conclude that it would have affirmed the delegate's decision. Quite clearly, the additional country information was not a critical factor upon which the decision was likely to have turned and procedural fairness therefore did not require the applicant to have been given it: Kioa v West (1985) 159 CLR 550 at 587. In any case, it is difficult to see how the applicant was disadvantaged or how there was any practical unfairness in the Tribunal's approach: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 4. Further, the Tribunal notified the applicant that it may consider additional information. Where the applicant chose not to attend or to submit further information, the Tribunal was entitled to consider additional country information (NAHI). The applicant has not established an arguable case for a denial of procedural fairness or failure to comply with s 424A of the Act. No jurisdictional error on the part of the Tribunal is arguably apparent. The decision is therefore a privative clause decision.'' 13 Consequently, the primary judge dismissed the application.
This application for leave to appeal 14 The applicant's application for leave to appeal, filed on 10 January 2005, seeks an order that compliance with O 52, r 10(2)(b) of the Federal Court Rules ('Rules') be dispensed with. The primary judge dismissed the application for a draft order nisi on 29 October 2004. Any application for leave to appeal from this judgment should have been filed before 7 November 2004. One can understand, however, why this deadline was not met. 15 On 3 November 2004, the applicant filed in this Court a notice of change of address. On 8 November, the Court sent a copy of her Honour's reasons for judgment to the applicant's old address. It would appear that the change of address notice filed on 3 November 2004 did not reach the court file in this matter until after 8 November 2004. As a result, the letter of 8 November 2004 was returned to the Court. Her Honour's reasons were subsequently sent to the applicant's new address and she claims in an affidavit sworn on 10 January 2005 that she received them on 31 December 2004. The applicant further claims that she was not aware that her Honour's judgment was considered to be an interlocutory judgment and thus believed she had 21 days to file a notice of appeal. 16 In the above circumstances, I would be prepared to overlook the applicant's delay. However, even if I accept that valid and legitimate reasons exist for the delay, the application for an extension of time must still be refused if the appeal would have no or very slight prospects of success: see Gallo v Dawson (No 2) (1992) 109 ALR 319; Deighton v Telstra Corp (unreported, Lee, Heerey and Nicholson JJ, 17 October 1997); Kalaba v The Queen (unreported, Finn J, 13 September 1996); and Engler v Commissioner of Taxation [2002] FCA 620 per Nicholson J at [12]. 17 In my view an appeal, if an extension of time and leave to appeal were granted, would stand no chance of success. The sole claim before the primary judge was clearly rejected by her Honour. The applicant has not been able to demonstrate that the primary judge made any error in this conclusion. I am of the view that her Honour was correct in concluding that the Tribunal did not fail to accord the applicant procedural fairness as the applicant claimed and that there is no arguable error in the Tribunal's reasons. At the hearing before me the applicant produced detailed written submissions that essentially canvassed issues of fact. They did not raise any complaint about the Tribunal's decision that had not been raised before the primary judge and which her Honour had not correctly dealt with. 18 Having regard to the Tribunal's reasons, in particular its clear findings of fact based on independent country information, and the judgment of the primary judge, I am satisfied that any appeal from her Honour would be doomed to fail and for that reason the extension of time must be refused and the application dismissed. I further order that the applicant pay the respondents' costs in the amount of $950. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.
Associate: Dated: 7 March 2005 Counsel for the Applicants: The applicant mother appeared on behalf of the applicants
Applicants S557 of 2003
Minister for Immigration & Multicultural & Indigenous Affairs