M162 of 2002 v Minister for Immigration & Multicultural &

Background 4 The applicant husband and wife, citizens of Sri Lanka, arrived in Australia on 22 November 1994. They held visitor visas which were valid until 31 March 1995. On 24 February 1995 the applicants applied for Subclass 866 Protection visas. That application was refused by a delegate of the Minister on 31 October 1995 on the basis that the applicants were not persons to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). On 1 December 1995 the applicants applied to the RRT for a review of that decision. On 22 July 1996 the RRT affirmed the decision to refuse to grant the protection visas. On 20 August 1996 the applicants were granted a Subclass 435 Sri Lankan Humanitarian (Temporary) (Class TT) visa. 5 On 21 November 1996 the applicants requested the Minister to exercise his discretion to substitute a more favourable decision under s 417 of the Act. On 19 June 1997 the Minister decided not to consider the exercise of his discretion under s 417 of the Act. On 29 July 1997 the applicants made a request to the Minister that he give a notice pursuant to s 48B of the Act in order to enable the applicants to make a further application for a visa. This request was refused on 26 March 1999. However, in the interim period, on 8 April 1998, the applicants lodged an application for a Subclass 806 Special Need Relative visa. That application was refused by a delegate of the Minister on 7 April 2000. On 3 May 2000 the applicants applied to the Migration Review Tribunal ("the MRT") to review the decision of the delegate to refuse the application for the Subclass 806 Special Need Relative visa. 6 On 27 September 2000 the MRT affirmed the decision of the delegate to refuse the grant of a Subclass 806 Special Need Relative visa to the applicants. On 26 October 2000 the applicants made application to the Federal Court to review that decision but on 6 July 2001, just prior to the scheduled hearing, the applicants withdrew their application. 7 On 9 August 2001 the applicants requested the Minister to exercise his power under s 351 of the Act to substitute a decision more favourable than the decision of the MRT made on 27 September 2000. On 30 August 2002 the Minister decided not to consider whether or not to exercise his discretion in the applicants' favour and refused their request. 8 The final event in the sequence of applications made by the applicants was the filing of papers in the High Court on 18 September 2002.

The RRT decision 9 The applicants' claim for refugee status before the RRT was based on race and political opinion. The applicants are of Tamil origin and they lived in Colombo prior to their arrival in Australia in November 1994. The applicant husband claimed that members of the security forces showed an interest in him and in July 1994 he was detained for some time for questioning. He also claimed that he was involved in the laundering of money to support the Tamil cause. The husband supported his claim to have been taken into custody in July 1994 by submitting a copy of a letter dated 11 June 1996 from a solicitor. This was followed up by a further letter from the solicitor correcting an error in the first letter. The RRT found that the material in the letter was fabricated and at the least was unreliable and contradicted his claim that he was detained. The RRT found that the applicant husband was not interrogated and detained at any time in 1994 by the security forces. The RRT found that the applicant husband's claims concerning his involvement in money laundering lacked credibility. The RRT noted that the applicant husband was able to leave Sri Lanka legally and found that there was no basis on which the authorities would have had an interest in taking action against him for a Convention reason. The RRT did not think that the applicant husband's explanation that he was able to leave Sri Lanka legally because of assistance provided by a travel agent was plausible. 10 The RRT considered whether the applicants would face a real chance of persecution in the future by reason of their race or political opinion and referred to a considerable body of country information. Some of the material referred to supported the proposition that Colombo was not a safe haven for displaced Tamils. The material also referred to the fact that Tamils were exposed to danger including arbitrary arrest and detention and the risk of mistreatment in police custody. The RRT noted that Amnesty International was of the view that many Tamil returnees would not be able to live safely in any area of the country. 11 After referring to this country material the RRT said: "It is apparent from the reports referred to above that the situation regarding Tamils in Colombo deteriorated markedly after mid‑1993. Some reports around that time did not qualify the risk to Tamils according to their age, gender or other factors. The reports indicated that many Tamils in Colombo face a risk of interrogation, detention, mistreatment or torture in custody and/or harassment, especially in the wake of violent actions by the LTTE, or allegations of such actions." In particular, the country material supported the proposition that Tamils returning to Colombo who had unsuccessfully sought asylum ran the greatest risk of detention on arrival. However, there was also material to the effect that Tamils returning to Colombo were more secure if they had friends or relatives in Colombo and a permanent address in that city. 12 The RRT concluded: "Recent country information indicates not only that persons having the profile of the applicant and his wife, including long‑term association with Colombo and relatives there, do not face a real chance of coming to the attention of the authorities; if they do come to the attention of the authorities on the basis of their race, the strong indication is that they are released within a short time without being harmed, once they have been able to satisfy the authorities of their legitimate reason for being in Colombo. In view of the applicants' profiles and country information outlined above, the prospect of them being seriously harmed by the authorities for a Convention reason is remote, and the Tribunal so finds. In considering all of the circumstances of this case, including cumulatively, the Tribunal finds that there is not a real chance, as defined by the High Court in Chan's case, that the applicants would face persecution for a Convention reason if they were now to be returned to their country of origin." Accordingly the RRT affirmed the delegate's decision to refuse to grant a protection visa to the applicants. 13 The applicants submitted that the RRT fell into jurisdictional error in the following respect: (a) it failed to consider, or make any finding on, whether or not the applicants had a well‑founded fear of persecution by reason of their status as "returnees" to Colombo; (b) it misconstrued the "real chance" test; (c) it applied an incorrect test for the concept of "persecution".

The Court's discretion to enlarge time 14 The grant of an extension or an enlargement of time within which to apply for the issue of writs of certiorari or mandamus involves the Court exercising a discretion. An extension or an enlargement of time is not automatically granted on application: Gallo v Dawson (1990) 93 ALR 479 at 480; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495. The cases have established a number of factors which the Court may take into account in determining whether an extension or an enlargement of time for applying for the issue of writs of certiorari or mandamus should be granted. These factors include the length of the delay, the reason for the delay, whether any decision was made at any stage to accept the decision of the RRT, whether any party may be prejudiced if the extension or enlargement of time is not granted and the applicants' prospects of success in obtaining an order for the issue of the writ. There are also the underlying principles that there should be an end to litigation and that the Court should seek to achieve justice between the parties. 15 The relevant factors and principles were comprehensively set out by McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra). His Honour said at 495: "An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this court." [footnotes omitted] 16 In the present case the length of the delay in lodging the application with the High Court looms large. The decision of the RRT was handed down on 22 July 1996 and the application to the High Court was made over six years later on 18 September 2002. Such an extensive delay calls into mind the observation of McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra) at 495‑496: "Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, '[t]he rules of court must prima facie be obeyed'. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against a judgment or decision. 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." [footnotes omitted] 17 The Minister submitted that there were no special circumstances to explain or justify this considerable delay. It was not suggested that the Minister or any other public entity had brought about the delay. The applicants acknowledged and accepted that the delay was significant but explained it on the basis that they were at all times taking steps to enable them to remain in Australia. 18 In general terms, the procedural steps the applicants took and the applications and requests they have made were taken and made upon legal advice. They had different solicitors acting for them from time to time. The solicitors acting for them in 1996 did not advise them to make an application to the High Court for prerogative relief in respect of the decision of the RRT made on 22 July 1996. 19 When the RRT handed down its decision in July 1996 the applicants, having regard to the financial costs of what they called "an appeal", that is to say judicial review, decided to pursue less expensive alternatives. They were not informed at any time that there was a time limit to appeal to the court or that they might lose their right to appeal that decision. From 1994 to 2000 the applicants did not receive any financial support from any members of their family or anyone else. In 1996 the applicant wife was working in casual employment. After expenses they had insufficient funds to cover an application to seek review of the RRT's decision. 20 The applicant husband denied that the applicants made a conscious decision to accept the RRT's decision of 22 July 1996 as correct. He said: "We did not make any deliberate decision to accept the RRT's decision as correct. Rather, as the chronology states, we continued to take all steps we could that our financial circumstances would permit to challenge the various decisions to refuse us permission to remain in Australia." 21 The applicants were only advised of the existence of review by the High Court shortly after the Minister decided not to consider exercising his power under s 351 of the Act in relation to the application for a Special Need Relative visa. 22 The applicants submitted therefore that they had provided an explanation for the delay, being the taking of active steps to remain in Australia coupled with their lack of financial resources. The difficulty with that submission is that the active steps which they took were predicated on the basis that they were accepting the correctness and finality of the RRT decision. Although they said that they did not make any deliberate decision to accept the RRT's decision as correct, their request to the Minister on 21 November 1996 that the Minister exercise his discretion to substitute a more favourable decision under s 417 of the Act for the decision of the RRT is only explicable on the basis that the applicants were not challenging the finality of the RRT decision. A similar observation may be made in relation to the request the applicants made to the Minister on 29 July 1997 that the Minister give a notice pursuant to s 48B of the Act in order to enable the applicants to make a further application for a visa. 23 However, the factors and principles to which I have referred, and which were explained by McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra), are not rigid rules to be implied inflexibly. Rather, they are a guide or a set of beacons to be taken into account in determining how a judicial discretion should be exercised. In any given case the weight to be attached to a relevant factor will vary depending upon the weight ascribed to other factors. For the reasons to which I shall refer, I consider that there are exceptional circumstances which appear to outweigh the tipping of the balance or scales which would otherwise occur as a result of the significant period of delay and the implicit acceptance by the applicants of the correctness and finality of the RRT decision of 22 July 1996. These exceptional circumstances fall into two categories. Firstly there are the consequences of what might happen to the applicants if returned to Sri Lanka. According to the country information before the RRT they run the risk of detention on arrival. Secondly there is the nature and consequences of the jurisdictional error of the RRT which is relied upon. I now turn to that issue.

Privative clause decisions and jurisdictional error 24 Although the decision of the RRT on 22 July 1996 was handed down over five years before the coming into operation of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) on 2 October 2001, the decision of the RRT is nevertheless a "privative clause decision" for the purposes of s 474 of the Act because no previous judicial review of the decision of the RRT had been sought prior to the lodging of the papers with the High Court on 18 September 2002. Accordingly such an application falls within the transitional provisions found in sch 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). By virtue of par 8(2)(b) of sch 1, the privative clause amendments to the Act apply to a decision made before the commencement of that schedule (on 2 October 2001) where an application for judicial review had not been lodged as at that date. 25 The applicants accepted that the decision of the RRT was a privative clause decision but relied upon the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 for the proposition that a privative clause decision may be the subject of review where there is "jurisdictional error". A finding of jurisdictional error in respect of a privative clause decision has the result that there is no decision at all. 26 It was said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 that jurisdictional error covered a number of different types of error some of which may well overlap. The extent of jurisdictional error was identified in the joint judgment of McHugh, Gummow and Hayne JJ in the following terms at 351‑352: "No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it 'exceeds its authority or powers'. If that is so, the person who purported to make the decision 'did not have jurisdiction' to make the decision he or she made, and the decision 'was not authorised' by the Act."

Failure to properly consider the applicants' status as returnees 27 I turn to the first ground of jurisdictional error relied upon by the applicants, namely that the RRT failed to consider their status as "returnees". 28 I consider that the applicants have an arguable case for contending that the RRT asked itself the wrong question when it considered the position of "persons having the profile of the applicant and his wife" and failed to address the correct or real question, namely whether the applicants had a well‑founded fear of persecution by reason of their status as returnees to Colombo. In their application for a protection visa the applicant husband stated: "on my return I will be subjected to various questioning alleging that I had something to hide and that is why I fled the country." As noted above (par [11]), the country material considered and analysed by the RRT supported a claim that a Tamil who had unsuccessfully sought asylum and who returned to Colombo ran a significant risk of detention on arrival in Colombo. For example, a cablegram from the Department of Foreign Affairs and Trade dated 10 May 1994 noted: "both the grounds on which asylum was unsuccessfully sought and the applicant's background would be highly relevant here. For example, Tamils from Colombo who had unsuccessfully sought asylum, and who had been returned to here would obviously run the greatest risk of detention on arrival, but conversely, if they were able to get to Colombo, may have the family or friends necessary to shelter them." Although the RRT noted that the report consistently referred to returnees being more secure if they had friends or relatives in Colombo and a permanent address in that city, it is seriously arguable that the RRT did not address the applicants' concerns about being returnees when it analysed and reached conclusions on the basis of the country information. 29 After referring to the country information in considerable detail, the RRT said: "The applicant in this case is registered as a resident in Colombo. He has spent all his life in Colombo and has close relatives there. He and his wife are both settled residents of Colombo and their ID cards identify them as such. He is now aged 40 years. He has continuous employment in Colombo with the same firm for some 13 years; his wife has had stable employment for some nine years. Significantly, both the main applicant and his wife said that they had never encountered serious adverse consequences at the hands of the authorities, apart from one claim that the Tribunal finds lacks credibility and does not, in any event, amount to persecution for a Convention reason." The RRT then concluded with the passage referred to in par [12] above. 30 The applicants submitted that the profile of the applicants which was set out by the RRT in the passages referred to did not take into account, or address, the applicants' status as returnees. I consider there is merit in this submission if it can be made out, as the result would be that the RRT fell into jurisdictional error because it did not address the correct question or one of the claims made by the applicants. To adopt the language of Allsop J (with whom Spender J agreed and Merkel J substantially agreed) in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, the applicants' position and status as Tamil returnees was a "component integer" of their claims. It is therefore arguable that the failure of the RRT to make a finding in respect of the applicants' status as Tamil returnees occurred because the RRT did not consider the returnee aspect of the applicants' profile as a material issue to be addressed. In such circumstances it is arguable that jurisdictional error has occurred: Minister for Immigration and Multicultural Affairs v Yusuf (supra) at 348‑349 per McHugh, Gummow and Hayne JJ. 31 If the RRT has not asked the correct question, that is in relation to the applicants' status as Tamil returnees, or has not considered that status to be material, it is arguable that that question or consideration formed part of the exercise of the RRT's power. In such circumstances the RRT would fall into jurisdictional error with the result that its decision would be made without jurisdiction and would therefore not constitute a decision made "under the Act" for the purposes of s 474 of the Act. It would follow that the Court would not be precluded from reviewing that purported decision by reason of s 474: Plaintiff S157/2002 v Commonwealth of Australia (supra) at 45‑46. 32 The Minister submitted in substance that the RRT had decided the matter on the basis of issues of credibility and had not disregarded any of the claims made by the applicants. It is true that the RRT decided issues of credibility adversely to the applicants but the issue of their status as returnees was not one to be resolved by a determination of credibility having regard to the country information which was before the RRT.

Failure to adequately apply the "real chance" test 33 The applicants also submitted that the RRT had failed to apply the "real chance" test of persecution, relying upon Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379. The applicants submitted that the RRT misconstrued the real chance test. I do not consider that there is any substance in this submission. The RRT referred to the elements of the definition of a refugee considered in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra) and made it clear that it understood the concept of a real chance of persecution as explained in that case. In particular, it cited the judgment of Mason CJ at 389, Dawson J at 396 and McHugh J at 429‑430 in terms that make it clear, in my view, that there was no misunderstanding by the RRT of the appropriate test to apply.

Failure to apply the proper test for "persecution" 34 The final submission by the applicants regarding the jurisdictional error said to have been committed by the RRT was that the RRT did not apply the broad concept of "persecution" found in cases such as Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra) at 429‑431; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 232; Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at 303; Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCAFC 77 at [15]‑[30]. The applicants contended that the RRT's reasoning (at par [12] above) showed that the RRT did not look at whether or not being arrested, even if not amounting to physical torture, could constitute persecution in terms of a fundamental interference with the applicants' human rights or dignity; nor did it look at whether or not the arrest could be repeated and would then amount to persecution. I do not consider that there is any merit in this submission. The RRT directed itself correctly on the concept of "persecution" and, having regard to its findings on credibility, I do not consider that the RRT misapplied the relevant principles in applying the concept of "persecution" to the facts before it.

The proper procedure for considering an application for writs of certiorari, mandamus and prohibition when an enlargement of time is also sought 35 It is important to take into account the fact that the application for a writ of prohibition is still extant and does not require an extension of time before it can come before the Court. I note that the prohibition is sought against the Minister prohibiting the Minister from acting upon the RRT's decision. There was no application before the Court for the striking out of that application and it will be considered in the ordinary course. It is not desirable that the hearing of the applicants' application be fragmented. 36 Recently Merkel J considered the interrelationship between an application for a writ of certiorari and a writ of prohibition in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054. As his Honour pointed out, a writ of certiorari is not provided for in s 75(v) of the Constitution of the Commonwealth of Australia 1901 (Cth)("the Constitution"). However, certiorari is available as relief ancillary to the jurisdiction and power under s 75(v) of the Constitution to grant the prerogative writs of prohibition and mandamus: see Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 440‑441 per Kirby J; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 90‑91 per Gaudron and Gummow JJ and at 135 per Kirby J. In the present circumstances the application for a writ of certiorari to quash the decision of the RRT is ancillary to what must be the principal claim prohibiting the Minister from deporting the applicants and acting on the basis that the decision of the RRT in July 1996 authorised or enabled the deportation of the applicants pursuant to s 198 of the Act. 37 The form of the proposed order nisi submitted by the applicants demonstrates the primary nature of the application for a writ of prohibition. The form of relief claimed by the applicants is that: "1. A WRIT OF PROHIBITION should not [sic] be issued out of this Court directed to the first respondent prohibiting him from acting upon, giving effect to or enforcing the decision, whether personally or by his servants, officers or agents. 2. A DECLARATION should not [sic] be made by this Court declaring invalid the decision of the second respondent constituting the Refugee Review Tribunal ('the Tribunal') on 22ND July 1996 in Tribunal file V95/03955 relating to the prosecutor that 'The Tribunal affirms the decision not to grant protection visa to the Applicant' ('the decision'). 3. FURTHER OR IN THE ALTERNATIVE, A WRIT OF CERTIORARI should not [sic] be issued out of this Court to the second respondent calling up to this Court the decision to quash it. 4. AND A WRIT OF MANDAMUS or an injunction should not [sic] be issued out of this Court directed to the third respondent requiring him to constitute the Tribunal to consider and determine the prosecutor's application to the Tribunal according to law. 5. AND WHY AN INJUNCTION should not [sic] be ordered against the third respondent requiring him to appoint a member of the Refugee Review Tribunal other than the second respondent to consider and determine the prosecutor's application to the Tribunal according to law." 38 On reflection I consider that it was premature to consider the application for an extension of time within which to file the application for writs of certiorari and mandamus before the application for a writ of prohibition came on for hearing. The matter might have been dealt with finally if, at the same time as the application for an extension of time to file the application for a writ of certiorari and a writ of mandamus came on for hearing, there was also before the Court an application by the Minister for summary judgment and dismissal in respect of the application for the issue of a writ of prohibition. 39 The issue of delay is relevant in relation to the extension of time application. It is also relevant in relation to the application for the issue of a writ of prohibition. The grant of relief pursuant to s 75(v) of the Constitution is discretionary and the exercise of that discretion involves the consideration of two separate questions. These questions were identified in Re Refugee Review Tribunal; Ex parte Aala (supra) by Gaudron and Gummow JJ at 106‑107: "The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances." Their Honours identified a number of matters which might attract an exercise of discretion adverse to an applicant in respect of a claim for a remedy under s 75(v) of the Constitution which included unwarrantable delay and acquiescence in the decision which was the subject of the proceeding. 40 I consider therefore that where an application is made which includes an application for the issue of a writ of prohibition and a writ of certiorari and a writ of mandamus, it would not be an appropriate exercise of the Court's discretion to consider whether an extension of time should be granted to apply for the writs of certiorari and mandamus and otherwise to dispose of the part of the application relating to those writs unless the Court was able at the same time to determine and dispose of the application for the writ of prohibition. Underlying both aspects of the application is an issue of considerable delay which needs to be explained and to be taken into account in determining the manner in which the discretion of the Court should be exercised. In many cases there will be no difference between considering the issue of delay in the context of an application for an extension of time for applying for writs of certiorari and mandamus and considering delay in the context of whether the issue of a writ of prohibition should be refused. 41 The issue of delay in the context of the issue of a writ of prohibition has not been argued before me and any determination of the delay in the context of the application for an extension of time to apply for writs of certiorari and mandamus might well give rise to an issue estoppel without giving the parties the opportunity to make submissions on that subject‑matter. 42 I therefore propose to stand the application for an extension of time in which to make an application for writs of certiorari and mandamus over to the hearing of the substantive application before the Court. The costs of the application and hearing to date will be reserved.

I certify that the preceding forty‑two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Counsel for the Applicants: Ms M Kennedy SC and Ms K Anderson

Solicitor for the Applicants: Pushpa Hettiarachi & Associates

Counsel for the First Respondent: Mr C Horan

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second and Third Respondents: No appearance

Date of Hearing: 17 September 2003

Date of Judgment: 21 October 2003