B41 of 2003 v Refugee Review Tribunal

REASONS FOR JUDGMENT SPENDER J: 1 This is an application for an extension of time to file and serve a notice of appeal from the decision of Dowsett J made on 2 February 2004 to dismiss the application of the male prosecutor for prerogative relief. Leave is required because the application for an extension of time to appeal was filed on 17 March 2004, twenty-two days after the expiry of the time limited for the filing of an appeal. Order 52 rule 15 of the Federal Court Rules provides that the appeal ought to have been filed by 24 February 2004, being twenty-one days after the pronouncement of the decision of Dowsett J. 2 The proposed appeal originally alleged nine grounds of appeal, but all but two of those grounds were abandoned prior to the hearing for an extension of time to file and serve a notice of appeal. 3 The prosecutors are husband and wife and are Fijian citizens of Indian extraction. They married in Fiji on 4 December 1989 and arrived in Australia on 1 August 1999. On 15 September 1999 they applied for protection visas pursuant to the Migration Act 1958 (Cth) ('the Act'). On 21 October 1999 a delegate of the second respondent ('the Minister') refused their application. On 25 February 2000 the first respondent ('the Tribunal') affirmed that decision, noting that only the male prosecutor had sought to establish refugee status. It appears that the female prosecutor was content to rely upon the male prosecutor's claim. The male prosecutor subsequently sought writs of mandamus, certiorari and prohibition in the High Court. That application was remitted to the Federal Court. At first instance, only the male prosecutor challenged the Tribunal's decision. The Tribunal has filed a submitting appearance save as to costs. 4 After the prosecutor had lodged his application to the Tribunal (which was received by the Tribunal on 15 November 1999), the Tribunal wrote to the appellant on 18 November 1999 advising him that the Tribunal had asked The Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA') to send a copy of its documents to the Tribunal, and informing him that if the applicant changed his telephone number, home address or address for service, he must tell the Tribunal. A copy of this letter was faxed to the prosecutors' migration agent, Australian Migration Visa Assistance. 5 By letter dated 10 December 1999 addressed to the appellant (a copy of which was faxed to his migration agent), the Tribunal advised that, having looked at the material, it was not prepared to make a favourable decision on that information alone. It invited the prosecutor to a hearing on 1 February 2000 and gave the necessary details. There was contact between staff of the Tribunal and the prosecutor's agent on 21 January 2000 and 31 January 2000 about the prosecutor's failure to respond to the hearing invitation. In a telephone call on 31 January 2000, the Tribunal was advised by the prosecutor's migration agent that the prosecutor 'would not be appearing at his hearing scheduled to be held tomorrow'. 6 The prosecutor did not attend the scheduled hearing, and on 25 February 2000 the Tribunal affirmed the decision to refuse the protection visas. 7 On 20 August 2000 the prosecutor became a member of a representative action in the High Court of Australia commenced in the names of Herijanto, Muin and Lie. Pursuant to orders of Gaudron and McHugh JJ, the prosecutor filed an application seeking an order nisi in relation to the decision of the Tribunal. That application was filed in the High Court on 13 June 2003 and was remitted instanter to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth). 8 Pursuant to the draft order nisi filed in the High Court, the appellant sought writs of mandamus, certiorari and prohibition on the grounds that certain materials referred to in the decision of the Tribunal were not delivered to, or explained to the appellant prior to the Tribunal making its decision. The articles in question were: (a) An article in Reuters News Service of 18 May 1999 entitled "Fiji's PM Rabuka formally quits after 12 years" ('the Reuters article'; and (b) An article entitled "Rights - Fiji, New Gov't Needs to Heal Racial Wounds" by Kalina Seneviratne, Inter Press Service 27 May 1999 ('the Inter Press article'). The grounds of the application at first instance were expanded somewhat from the grounds set out in the writs seeking prerogative relief. 9 The only grounds pressed on the application for an extension of time within which to appeal are: 'Ground 6. The Court erred in finding that the rules of procedural fairness had been satisfied with regard to the adverse material sourced by the Tribunal and not offered to the applicant for comment because the applicant was not present at the hearing. Ground 7. The Court erred in relying on s 424A(3)(a) of the Migration Act 1958 as exhaustively defining the procedural fairness with regard to the adverse material.' 10 The Reuters article was in the following terms: 'Fiji's defeated Prime Minister Sitiveni Rabuka formally resigned on Tuesday, ending 12 years in office and making way for an Indian-dominated government many hope will unite the racially divided nation. The man who seized power in a 1987 coup walked into government house to tender his resignation to Fiji's president after losing a historic multi-race election and was asked whether it was a sad day. "No, it's part of the job," Rabuka replied with a smile. Mahendra Chaudhry, leader of the Fiji Labour Party, declared victory in the election on Monday and said he would be Fiji's first Indian prime minister. The election was the first under a new constitution ending native Fijian political dominance and ensuring a multi-race government. … "If there is any change in government there is a lot of uncertainty because of the 1987 coup," said Pramesh Sharman, operating manager of the Merchant Bank of Fiji Ltd. "Mr Chaudhry must sit down and work towards stability and get people's confidence," Pramesh told Reuters. But Rabuka said the election was a step towards racial harmony and he did not expect a Fijian backlash. "It was an election fought by a Labour-led coalition with a group of Fijian political parties to oust my government. They have succeeded. My group will not do anything," he said. Political observers said the elements which laid the foundation for the 1987 coup were missing in Fiji in 1999. They said Fiji now had better race relations, citing the new constitution and widespread support for Indian candidates by indigenous Fijians in open-race seats. "Why should there be another coup? There are Fijians out there who have chosen the Labour party to be their government," said winning Labour candidate Deo Narain. Under Fiji's new constitution, parliament will be made up of 46 communal seats (23 Fijian, 19 Indian, one for Rotuman Island, and three others) and 25 open-race seats. While final counting continued on Tuesday, the Labour-led coalition had won 48 seats, while Rabuka's Fijian party had won only seven and its Indian coalition partner the National Federation Party had failed to win a seat. Security during the election has been tight and police have called for continued calm while a government is established. Fiji's population is made up of around 51 percent indigenous Fijians, 44 percent Indian-Fijians and five percent other races.' 11 The Tribunal said of this article: 'The report indicates that Rabuka has accepted the result of the election and there is no real chance that there will be ethnic violence that could result in harm to the applicant. Therefore the applicant's fears are not well-founded.' 12 The Inter press article was in the following terms: 'Now that Fiji has thrown its old government out of office, its new government faces the tough tasks of reviving an economy in recession and most tricky of all, healing racial tensions in this South Pacific island. Fiji's new Prime Minister, Labor leader Mahendra Chaudhry, took his oath of office on May 19 to become the country's first Indian premier. It is a major development, given the fact that the last Indian-led government, where Chaudhry was finance minister, was ousted in a coup led 12 years ago by then Colonel Sitiveni Rabuka. Rabuka was the premier thrown out of office in last week's polls. … The Rabuka-led Fijian Soqosoqo ni Vakavulewa ni Taukei (SVT) has been reduced to just eight seats in the 71-seat Parliament, and its Indian coalition partner National Federation Party (NFP) lost all its seats. Chaudhry has called on all Fijians to "put the past behind us", referring to the ethnic divisions that have dominated political life here for more than a decade. Though Chaudhry's coalition led by his Fijian Labor Party had enough seats to form a government and is composed mostly of Indo-Fijians, it has formed a government with indigenous Fijian partners and allocated key ministries to them. Surprising many political observers in Fiji, Chaudhry also announced a 17-member Cabinet dominated by indigenous Fijians. Both deputy prime ministers are indigenous Fijians, and so are 11 of the Cabinet members. Asked at a press conference why his Cabinet was dominated by indigenous Fijians, Chaudhry replied: "Why not?" Analysts called this a strategic political move which is "sensitive to the sensitiveness of indigenous Fijians" to the current political climate. … Most sugarcane farmers live on land leased on a 30-year basis under what is called the Agricultural Land and Tenants Agreement (ALTA), which started to expire since 1997. These are land communally owned by indigenous Fijians and leased to Indian farmers, and have gotten entangled in racial tensions. Thus, the biggest test for the new government will be to renegotiate these agreements which are a very sensitive communal issue at the root of indigenous land rights. Chaudhry has promised to respect the special rights of the indigenous community as enshrined in the Constitution, but he also needs to deliver an agreement which will also be fair and beneficial to the Indian community. Indigenous Fijians number some 400,000, and Indian Fijians less than 340,000. …' 13 Of this article the Tribunal said: 'This material supports the view that the government is attempting to resolve issues that led to ethnic tension and the Tribunal could find no reports of ethnic violence since the election. The applicant claims that he will be killed by the Fijian natives but he has provided no details as to why he believes he will be killed for the Tribunal to consider whether his fear is related to the Convention or well founded.' The Application for Leave to Bring the Appeal out of Time 14 Pursuant to O 52 r 15(2), the Court or a Judge may give leave to file and serve an appeal out of time 'for special reasons'. In Jess v Scott (1986) 12 FCR 187, Lockhart, Sheppard and Burchett JJ at 195 indicated: '… the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days.' A ground which does justify departure from the general rule is a special reason, because it takes the case out of the ordinary. Their Honours said: 'It should not be overlooked that r 15(2) enables leave to be given "any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.' 15 It appears from an affidavit of the prosecutor that he was told by his then lawyers that an appeal had to be lodged on or before 4 March 2004, and that his then lawyer, because of an absence overseas, would not be able to see him in respect of that matter. On 27 February 2004 he was referred by the South Brisbane Migration and Legal Service to seek advice from his present solicitor, who then sought advice from counsel concerning an appeal out of time. The application for an extension of time, together with a draft notice of appeal, was filed on 17 March 2004. 16 Counsel for the Minister submitted that the delay after 4 March 2004 is unexplained. 17 Given the need to ascertain the correctness of the advice given to the prosecutor by his former solicitors as to the time within which to appeal, and given that the new instructing solicitors had to start afresh on a file that had yet to be transferred to them, there are special reasons why an extension of time within which to file and serve a notice of appeal to 17 March 2004 should be granted. The extension is only for a short period of time, the proposed grounds of appeal are at least arguable, and there is no prejudice to the respondent by the grant of an extension of time. Denial of Procedural Fairness 18 Ground 6 involves an assertion that, notwithstanding the prosecutor's failure to attend at the Tribunal hearing, the Tribunal had an obligation to seek a means by which the applicant could have been acquainted with the "adverse material" and asked for comment. 19 The trial judge looked at the "additional material" referred to by the Tribunal and looked at the matters advanced by the prosecutor concerning his fears for the future. 20 His Honour noted that: '41. For present purposes, it is important to note that although the delegate did not refer to the additional material, nonetheless her decision was made upon the same general basis as that of the Tribunal. The delegate observed: "The new government inherits a constitution that contains provisions that protect indigenous interests. "Included in the amended Constitution is a strengthened bill of rights and a compact among the people to protect their respective rights and interests, which, however, acknowledges that the paramountcy of indigenous Fijian interests can not be subordinated to the interests of other communities." There is no evidence that the new government intends to violate the democratic rights of any group in Fiji. Whatever changes the new government envisages making to law and policy, these will be made within the democratic framework. This by definition cannot be framed so as to discriminate or persecute any group".' The trial judge noted that the prosecutor asserted that 'had he been aware of the new material considered by the Tribunal, he would have responded thereto.' His Honour said of this response: '43. The prosecutor's proposed response concerns past events rather than prospects for the future. The Tribunal appears to have assumed a history of racial tension and perhaps violence, but to have chosen to place great store by the new constitution, the new government and events since the election. The prosecutor's reference to the deaths of two persons and to the threat made against him go some way to explain his own fears and to offer support for them, but those matters say nothing about the factors which appear to have weighed most heavily with the Tribunal. His proposed response does not deal with the additional material. It rather addresses historical matters. Further, the absence of any detail concerning these incidents makes it difficult to infer that knowledge of them could possibly have led the Tribunal to a different conclusion. It is inconceivable that the mere reference to the deaths of two Fijians of Indian extraction without details of when the event occurred, where and who was involved, could have done so. Similarly, the alleged threat, without details of the person making it or of the circumstances in which it was made, could hardly have such effect. It would be fanciful to conclude that the prosecutor's proposed response could have displaced the Tribunal's reliance upon the changed circumstances in Fiji.' 21 The trial judge concluded that: '48. … the Tribunal disposed of the case upon the same basis as did the delegate. The prosecutor was therefore aware of the need to address the significance of the new constitution, the new government and events since the election. The rules of procedural fairness require that a party know the case which he must meet. See Re Minister for Immigration and Multicultural Affairs & Anor; Ex part Miah (2001) 206 CLR 57 at [99] per Gaudron J, [140] (per McHugh J) and [191] per Kirby J. I do not understand it to be necessary that a party be told in advance the precise evidence to be led by the opposing side. … The prosecutor knew that the delegate had decided the matter, having regard to the new constitution, the new government and events since the election. The whole point of his application to the Tribunal was to reverse that conclusion. He chose not to attend the hearing or to provide further information. He cannot complain that he was not offered an opportunity to comment upon material which seems to have gone no further than that upon which the delegate relied in reaching the decision under challenge.' 22 No error is demonstrated in the trial judge's conclusion that there was no breach of the rules of procedural fairness. The proposed ground 6 fails. 23 Moreover, the trial judge concluded that: '… the prosecutor had nothing further to say relevant to [the additional material which the Tribunal considered].' 24 There was no appeal from that part of his Honour's judgment or from his Honour's conclusion that he would exercise his discretion against granting relief, because of the lack of practical injustice. The trial judge said: '57. … the Tribunal disposed of the matter by concluding that it was unlikely that the prosecutor would suffer persecution for a Convention reason and that his fear was therefore not well-founded. As I have previously observed, it is at least possible that such a fear could be well-founded notwithstanding the Tribunal's view that the feared events were unlikely to occur. 58. While it is true that the Tribunal, in the present case, placed great emphasis upon its own views as to the future, such emphasis was inevitable in the absence of any detailed information from the prosecutor as to the reasons for his fears. … The prosecutor's uninformative visa application, his failure to provide further information and his failure to attend a hearing in the Tribunal inevitably led to there being very little material upon which the Tribunal could reach any conclusion other than one which was unfavourable to him. Its focus on the post-election situation did not reflect a misunderstanding by the Tribunal of its duty but the unsatisfactory and unconvincing generality of the prosecutor's claims. I see no ground for concluding that the Tribunal misunderstood the test which it was to apply or failed to apply such test.' 25 It is true that the Tribunal, on 25 February 2000, formed a sanguine view as to the future of race relations in Fiji. It is true that the coup of George Speight on 20 May 2000 indicated that the confidence of the Tribunal for the future of race relations in Fiji in the short term future was misplaced. Yet hindsight does not permit the conclusion that the basis of the Tribunal's decision in February 2000 was erroneous. 26 There was a suggestion at the trial that a document "U.S. Reports, Fiji, 1999" which had been before the delegate of the Minister, was not before the Tribunal. The Tribunal, in its reasons, did not refer to those reports. The trial judge concluded: 'In my view there is no basis for inferring that the material in question was not before the Tribunal or considered in the decision-making process.' 27 The US Reports, Fiji, 1999 have been considered by the Court. 28 It is submitted for the prosecutor that the 1999 US Report has a number of references to ongoing discrimination on the basis of ethnicity in Fiji, and the ability of the Fiji Government, including through its police force, to prevent abuses occurring. Counsel for the prosecutor referred specifically to the following: (Introduction - paragraph 2) 'However it preserves the paramountcy of indigenous Fijian interests, which cannot be subordinated to the interests of other communities.' (Introduction - paragraph 3) 'Nonetheless ethnicity remains a dominant factor in Fijian life and affects the country's politics, economy, and society.' (Introduction - paragraph 4) 'There continued to be credible reports of human rights abuses by individual Police officers.' (Introduction - paragraph 6) 'The principal human rights problem, while significantly addressed in the revised Constitution, remain ethnically based discrimination.' (Introduction - paragraph 6) 'Other human rights problems include occasional Police brutality, informal constraints on the freedom of the press, efforts to restrict public comments by the diplomatic core, discrimination in cases of violence against women, and instances of abuse of children.' (Section 1(c) - paragraph 1) 'Police sometimes abuse detainees; the authorities have punished some of the offending officers, but these punishments have not been sufficient to deter all Police abuses.' (Section 2(a) - paragraph 1) 'There are credible reports of attempts by individual members of the Government to pressure editors or otherwise interfere with the independence of the press.' (Section 2(a) - paragraph 2) 'Although the Public Order Act and other Acts prohibit actions that are likely to incite racial antagonism, there were no reported arrests for such public statements.' (Section 5 - Women - paragraph 1) 'However in at least one case, the Police reportedly exhibited great reluctance to investigate and prosecute a Policeman who had beaten his wife into a coma.' (Section 5 - National/Racial/Ethnic Minorities - paragraph 2) 'Control of land is a highly sensitive issue. Ethnic Fijians currently hold, communally, about 83% of land, and the State holds another 8%, and only the remaining 9% is freehold land. The British Colonial Administration instituted the present land ownership arrangements to protect interests of the indigenous Fijians whose traditional beliefs, cultural values, and self-identity are tied to the land. Most cash crop farmers are Indo-Fijians, who lease land from the ethnic Fijian landowners through the Native Land Trust Board. Many Indo-Fijians, particularly farmers, believe that the absence of secure land tenure discriminates against them. Most current leases are expected to expire by 2000.' (Section 5 - National/Racial/Ethnic Minorities - paragraph 3) 'Indo-Fijians are subject to occasional harassment based on race. There have been no credible allegations of Government involvement in such incidents, which the Police have investigated, sometimes resulting in arrests.' 29 The submission by the appellant is that the delegate of the Minister made a decision that was improper, given the information in the 1999 US Report, and that the Tribunal's decision to affirm that original decision of the delegate would have been different if the Tribunal had: (a) reviewed the 1999 US Report, which would have led it to conclude that the Delegate had erred in selectively choosing favourable material and ignoring the extensive material regarding the situation in Fijiearlier set out in par 26; and (b) been made aware of the deficiencies in the decision making process of the delegate. 30 These submissions misunderstand the nature of the decision to be made by the Tribunal. The Tribunal does not sit on appeal from decisions of the delegate: it has to form its own independent view on the material before it. Similarly, the question for the Federal Court in this matter was whether legal error attended the Tribunal's decision on 25 February 2000. It is quite inconsistent with that function that the Federal Court, at first instance, 'should have been mindful of the deterioration of the conditions in Fiji caused by the 2000 coup subsequent to the decision of the Tribunal', as counsel for the prosecutor contended. 31 That the Tribunal shared the same view as the delegate about the future of race relations in Fiji is undoubted. However, a detailed consideration of the whole of the 1999 US Report does not falsify the conclusion which the Tribunal reached. The 1999 US Report is not inconsistent with the view which the Tribunal reached. In particular, the 1999 US Report does not require the conclusion that the Tribunal erred in law in reaching its conclusion about race relations in Fiji in the future. Interpretation of Section 424A(3) 32 Section 424A of the Act relevantly provided, at the time of the Tribunal's decision: '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' The trial judge said: '50. The section requires the Tribunal to extend to an applicant an opportunity to comment concerning material upon which it proposes to act. However subs 424A(3) excludes certain material from that prescription. In this case the additional material concerned the relations between indigenous and non-indigenous Fijians. To my mind such material was not about the prosecutor but about a class of persons of which the prosecutor was a member, namely non-indigenous Fijians.' His Honour concluded: '51. … Sub-section 424A(3), in my view, excludes the additional material from the operation of subs 424A(1).' 33 At the time, Division 4 of Pt VII of the Act did not expressly purport to prescribe exhaustively the requirements of procedural fairness in the Tribunal. Subsequent amendments have made such provision. His Honour noted: '52. It is most unlikely that Parliament intended that the Tribunal should be required, in circumstances not identified in the Act, to seek comments on matters clearly excluded from the operation of subs 424A(1). I consider that s 424A exhaustively defined the aspect of procedural fairness which is presently relevant.' 34 Ground 7 has no relevant operation where the trial judge had correctly concluded that there was an absence of a breach of the rules of procedural fairness, and there was no lack of practical injustice demonstrated. 35 The argument whether s 424A did not effectively 'cover the field' in respect of the provision of notice of adverse material was not raised by counsel for the prosecutor at trial. Whether s 424A represented a complete statement of the Tribunal's obligation to afford procedural fairness has been the subject of some judicial conflict. In WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 409, a Full Court of the Federal Court (Wilcox, Nicholson and Downes JJ) held that s 424A was a manifestation of a legislative intention excluding the common law rules about natural justice. However, the contrary view was expressed by a Full Court (Lee, Hill and Marshall JJ) in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 and by a Full Court (Beaumont, Conti and Crennan JJ) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 160. 36 Because the point was not raised below, and in the light of the reasons expressed above that there was no denial of natural justice in the factual circumstances of this case, the point is moot. Given the hypothetical and conjectural nature of the question in the present circumstances this Court should not enter upon it, it not being expedient in the interests of justice to do: O'Brien v Komasarov (1982) 150 CLR 310. 37 The material presently in issue was not specifically about the appellant, and its only relevance to the decision-making process was because it related to a class of persons, being non-indigenous Fijians, of which the appellant was a member. The information (insofar as it was relevant at all) was "just about" the class of which the appellant was a member, and did not go to any other issue relevant to the reasoning process of the Tribunal. 38 Counsel for the prosecutor contended for a narrower class, being Fijian Indians 'whose land was taken although their leases had several years to run'. In this case, the trial judge found, rightly: '… the additional material concerned the relations between indigenous and non-indigenous Fijians.' 39 For the above reasons, the time for the prosecutor within which to file and serve a notice of appeal from the decision of the trial judge, is extended until 17 March 2004. The appeal should be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender