M134 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This application is for leave to appeal from a judgment of the Federal Magistrates Court in Applicant M134/2003 v Minister for Immigration & Anor [2004] FMCA 163. 2 By s 24(1A) of the Federal Court of Australia Act 1976 (Cth), leave to appeal is required in respect of an appeal from an interlocutory judgment. A Full Court of this Court in NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 has held that an appeal from a refusal of an order nisi, the application for which has been remitted from the High Court of Australia to this Court pursuant to s 44(1) of the Judiciary Act 1903 (Cth), is an appeal from an interlocutory judgment. In the present case, an application for an order nisi directed to the Minister for Immigration and Multicultural and Indigenous Affairs (formerly the Minister for Immigration and Multicultural Affairs) (in both cases, 'the Minister'), a member of the Refugee Review Tribunal ('the Tribunal'), and the Senior Member of the Tribunal, was so remitted to this Court and further remitted to the Federal Magistrates Court. On 18 March 2004, the Federal Magistrates Court made an order dismissing the application for an order nisi and an order that the applicant pay the respondents' costs fixed at $2 000. I am therefore not in any doubt that this is an application for leave to appeal in respect of an interlocutory judgment of the Federal Magistrates Court. 3 The principles to be applied in considering whether leave should be granted are those to be derived from a line of authority referred to by the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. In substance, there are two issues to consider. The first relates to the prospects of the proposed appeal and is expressed in terms of whether the decision appealed from is attended with sufficient doubt to warrant its being reconsidered. The second principle is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The authorities indicate that the two tests should not be considered separately, because they bear upon each other. The degree of doubt sufficient in one case may be different from that required in another. Ultimately the question is one of discretion and may involve a balancing of considerations. 4 The facts found by the learned Federal Magistrate are somewhat brief. On 11 September 1995 the applicant, a citizen of Fiji of Indian ethnic origin, lodged an application for a protection visa, pursuant to the Migration Act 1958 (Cth) ('the Migration Act'). That application was refused on 19 September 1995 by a delegate of the Minister. Application was made to the Tribunal for a review of the delegate's decision and on 11 June 1996 the Tribunal affirmed the delegate's decision. 5 Subsequently, in the High Court of Australia, there were two representative proceedings, involving classes of persons who were alleged to have been denied natural justice by the Tribunal in their respective cases in one specific respect. Those cases were known as the Muin cases and the Lie cases. The High Court delivered judgment in Muin and Lie on 8 August 2002. See Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601. In each case, the High Court upheld the claim that a denial of natural justice had occurred. In each case, the person concerned had received a communication from the Tribunal concerning its receipt of documents in the possession of the relevant department in connection with the application for a protection visa. In each case, the person had been misled by the communication by the Tribunal as to whether it proposed to have regard to those documents or had in fact done so. If not so misled, the person concerned could have taken a course that might have brought about a different result in the case. 6 It is said that the applicant in the present case joined the Muin class in the High Court and subsequently filed her own application for an order nisi in respect of the Tribunal's decision in her case. Nothing in the material suggests that her case bears any resemblance to the facts of the Muin or Lie cases. She does not allege that she received any communication from the Tribunal about documents, that she was misled by it and that, if not misled, she could have taken a course that might have brought about a different result. 7 The claim of the applicant in the present case was that the Tribunal denied her procedural fairness, by relying on material in documents to which it had not drawn her attention, and thereby denied her the opportunity to respond to that material. The Federal Magistrate dealt with that claim briefly in his reasons for judgment. He said at [23]: 'It is noted the RRT in fact referred to a number of documents which had been provided to the applicant including country information on Fiji. They were given to the applicant and that is recorded in the RRT decision. It is further noted that there is a complete absence of any evidence to support the claim in the present application. The only evidence before the Court is the documents claim[ed] not to be put to the applicant were in fact actually put by the RRT to the applicant and she was invited to comment on the documents. Indeed she did comment on the documents. Accordingly, there is no merit at all in this application and no arguable basis upon which a decision can be made in favour of the applicant. 8 An examination of the Tribunal's reasons for decision discloses that this paragraph of the Federal Magistrate's reasons contains an error. At p 7 of the Tribunal's reasons, the Tribunal listed the documents to which it had referred the applicant and documents it had actually sent her. The documents to which she was referred consisted of 'the United States Department of State Country Reports on Human Rights Practices for 1995' and, generally, 'Amnesty International reports.' The documents the Tribunal sent to the applicant for her consideration consisted of four cables from the Department of Foreign Affairs and Trade. The Tribunal recorded in its reasons that it received a written submission from the applicant in relation to those documents. In that communication, she reiterated her claims regarding discriminatory practices and policies towards Fiji Indians as evidenced in the Fijian Constitution and as reported by the media. She referred to a number of media reports highlighting difficulties for Indians. 9 The Tribunal then went on to deal with the specific aspects of the applicant's claims. In the course of doing so, at p 8 of its reasons for decision, it acknowledged that it proposed to set out: 'more detailed information on the current situation in Fiji than was previously provided to the Applicant or her husband.' 10 In the course of dealing with the various issues, the Tribunal did indeed refer to a considerably broader category of sources of information than those to which it had directed the applicant's attention. The difficulty is that it is hard to analyse the reasons of the Tribunal to determine what material in the broader category supported the applicant's claim, was neutral to that claim, or was adverse to it. The Tribunal itself did not categorise the material in that way. All that can be said is that the material to which the Tribunal referred did travel well beyond that to which it specifically directed the applicant's attention. The Federal Magistrate was therefore in error in finding that all of the material that had been relied on by the Tribunal had been given to the applicant and that she had had the opportunity to comment on it. The question is whether this error is sufficient to warrant a reconsideration of the applicant's claim for an order nisi by this Court. 11 In the first place, it must be said that the applicant has not at any time attempted to make any specific case about the reliance by the Tribunal on information about circumstances in Fiji. Nowhere in the material she placed before the Federal Magistrates Court has she attempted to analyse the reasons for decision of the Tribunal, to identify adverse material on which it relied and on which she had not had the opportunity to comment. There is nothing in her material dealing with the question whether, at the hearing which the Tribunal conducted and at which she apparently attended, the Tribunal did not put to her the substance of any adverse material on which it proposed to rely and give her an adequate opportunity to comment on that material. 12 Finally, as the Federal Magistrate identified in his reasons for judgment, there was no attempt made by the applicant to say what she might have done, if she had received notice of any adverse material, that might have altered the course of the proceeding. In this respect, the Federal Magistrate placed reliance on the judgment of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502, which in turn was followed in Applicant M115/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1448. 13 At [25] of his reasons for judgment, the Federal Magistrate accepted a submission on behalf of the respondents that the applicant had failed to discharge the necessary evidentiary burden. The Federal Magistrate also found that the applicant had failed to comply with an order made by a judge of this Court, before the matter was remitted to the Federal Magistrates Court, requiring her to file material to make out her case. 14 It is also necessary to refer to the fact that there was in this case a real issue as to whether time should be extended to allow the applicant to make her application to the High Court. That was taken to be part of the question referred or remitted by the High Court when it remitted the application for an order nisi. The application was for an order nisi for prohibition, certiorari and mandamus. The applicant also sought a declaration. The High Court Rules impose no time limit in respect of applications for prohibition but time limits of six months and two months respectively in relation to applications for certiorari and mandamus. The applicant was well outside those times. The applicant's application to the High Court was not filed until 20 May 2003, which was almost seven years after the Tribunal's decision.