P33 of 2003 v Refugee Review Tribunal

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

THE COURT ORDERS THAT: 1. The time within which the Applicant was required to apply for writs of certiorari and mandamus in terms of Order 55 rules 17 and 30 of the High Court Rules be and is hereby enlarged to 20 June 2003 pursuant to Order 60 Rule 6 of the said Rules. 2. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT ON NOTICES TO ADMIT AND EXTENSIONS OF TIME 1 In March and June 1999, Mr Muin and Ms Nancy Lie, both Indonesians of Chinese ethnicity, commenced proceedings in the High Court in respect of the affirmation by the Refugee Review Tribunal ('the Tribunal') of decisions of delegates of the Minister for Immigration and Multicultural Affairs refusing to grant them protection visas. In each case the applicants sought relief under s 75(v) of the Constitution. Both the Muin and Lie actions were brought as representative actions. Numerous plaintiffs were joined to each of the actions between 1999 and 2001. Applicants P33 of 2003, P34 of 2003, P36 of 2003, P38 of 2003 and P40 of 2003 were among the applicants named in the schedule of represented parties in the Lie representative action. 2 On 3 November 2000, Gaudron J reserved certain questions in the proceedings for consideration by the Full Court of the High Court under s 18 of the Judiciary Act 1903 (Cth). The questions related only to the individual cases of Mr Muin and Ms Lie. They were as follows: 'Upon the facts set out in the agreed statement of facts and the inferences, if any, to be drawn from those facts ... (1) Was there a failure to accord the Plaintiff procedural fairness? (2) Was there a failure to comply with s 418(3) of the Migration Act? (3) Was there a failure to comply with s 424(1) of the Migration Act? (4) If the answer to any of questions (1) to (3) is yes, (a) Was the decision of the first defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid? (b) What declaratory, injunctive or prerogative writ relief, if any, should be ordered? (5) By whom should the costs of the proceedings in this Court be borne?' 3 In its judgment delivered on 8 August 2002 in Muin v Refugee Review Tribunal (2002) 190 ALR 601, the Court held that in the case of both Mr Muin and Ms Lie there had been a failure to accord procedural fairness in connection with the review of the delegate's decision by the Tribunal. 4 In each case the Court answered a question as to relief by stating that certiorari should issue to quash the Tribunal's decision, prohibition should issue to prevent the decision being acted upon and mandamus should issue to the Tribunal directing it to hear and determine the review application in accordance with law. These answers to the questions stated for the Full Court did not in themselves constitute the grant of that relief. 5 The applications went back to Gaudron J who made an order in the Lie case on 25 November 2002 in the following terms: '1. Leave be granted to the Plaintiff, in her individual capacity, to file a draft Order Nisi in respect of the decision of the Refugee Review Tribunal relating to her personally. 2. Leave be granted to any other person named in the Schedule to the Statement of Claim in these proceedings to file an application, seeking an Order Nisi in relation to the respective decisions of the Refugee Review Tribunal in relation to that individual, on or before 1 June 2003. 3. Any application filed pursuant to Order 2 above shall be remitted instanter upon filing to the Federal Court of Australia in accordance with the usual terms of remitter pursuant to s 44 of the Judiciary Act 1903 (Cth). 4. Upon the filing of an application in accordance with Order 2 above, the name of the applicant shall forthwith be deleted from the Schedule of persons annexed to the Statement of Claim in these proceedings. 5. Subject to Order 6 below, and in the absence of any further order of the Court, on and from midnight on Friday, 30 May 2003, these proceedings shall stand dismissed. 6. Liberty to apply at any time prior to 30 May 2003 to any person whose name appears in the Schedule to the Statement of Claim in these proceeding and whose name has not, pursuant to Orders 2 and 4 above, been removed from the Schedule, to extend the period of time referred to in Order 5 on the ground that it has not been possible to obtain proper instructions with respect to the continuation of the matter, but, if such an order is sought in representative form, the application must include an application for the replacement of the present Plaintiff with a person whose name remains upon the Schedule to the Statement of Claim in these proceedings at the time of the application. 7. There be no order as to the costs of the defendants' summons filed 18 November 2002 or the plaintiff's summons filed 18 September 2002.' Similar orders were made in the Muin proceedings. 6 On 23 May 2003, McHugh J extended the time for the making of an application for an order nisi from 1 June 2003 to 20 June 2003 and the date of dismissal of the proceedings from 30 May 2003 to 19 June 2003. Draft orders nisi with supporting affidavits were filed in the original jurisdiction of the High Court pursuant to the orders of Gaudron and McHugh JJ as follows: Applicant P33 of 2003 - 27 May 2003 Applicant P34 of 2003 - 27 May 2003 Applicant P36 of 2003 - 27 May 2003 Applicant P38 of 2003 - 30 May 2003 7 In both the Muin and Lie representative actions McHugh J, by an order made on 16 June 2003, further extended the time for making of the application for an order nisi and dismissal of the proceedings from 20 June 2003 and 19 June 2003 respectively to 20 June 2003. Applicant P40 filed an affidavit on 17 June 2003 stating that he was making an application for an order nisi. On 20 June 2003, the representative actions were concluded by operation of the orders of the High Court. 8 It appears that upon the filing of a draft order nisi in the High Court the party filing the draft was taken to be the plaintiff in a distinct proceeding. That proceeding was then remitted by force of her Honour's order to this Court. 9 Two interlocutory questions have since arisen in this Court. The first is whether the individual applications so constituted were out of time and required an extension of time by reason of the time limit prescribed in O 55 of the High Court Rules. The second is whether the second and third respondents are deemed to have admitted facts set out in Notices to Admit Facts filed in the proceedings and whether, if that be the case, those admissions can now be withdrawn. Affidavits were filed and written submissions made in respect of these questions and oral argument presented at a directions hearing on 12 February 2004. The Statutory Framework Relevant to the Extension of Time 10 The relevant provisions of O 55 of the High Court Rules are in the following terms: '17(1) 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, or of a magistrate or justices, 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 prescribed by any law. ... 30 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 the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice.' 11 Order 60 r 6 of the High Court Rules provides: 'A Court or Justice may enlarge or abridge the time appointed by these Rules or fixed by an order of the Court or a Justice for doing an act upon such terms, if any, as the justice of the case requires.' 12 The remitter of the matters to the Federal Court was done pursuant to s 44 of the Judiciary Act which, in the relevant parts, provides: '44(1) Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted. (2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory. (2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia. (3) Where the High court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court: (a) that court has jurisdiction in the matter, or in that part of the matter, as the case may be; (b) subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court.' The Extension of Time Question 13 Orders were made by consent on 27 August 2003 programming the various applications to trial. However, at a further directions hearing on 29 October 2003, the question of extension of time was raised and directions made in respect of each of the applicants in the following terms: '1. If the applicant requires an extension of time to enable the application to be heard and determined the applicant is on or before 26 November 2003 to file an outline of the reasons why such extension should be granted and any affidavits in support of such extension.' Ancillary directions for filing of contentions and affidavits by the respondents were also made. 14 The extension of time question arose in respect of each of the applicants. In the case of Applicant P40, it was resolved by a consent order made at the directions hearing in the following terms: 'The time within which the Applicant was required to apply for writs of certiorari and mandamus in terms of Order 55 Rules 17 and 30 of the High Court Rules be and is hereby enlarged to 20 June 2003 pursuant to Order 60 Rule 6 of the said Rules.' The issue of extension of time is contested in relation to the remaining proceedings. 15 In respect of each of the remaining applicants the second and third respondents pointed to the date of the impugned decisions of the Tribunal. They also referred to the dates at which each of the applicants joined the representative actions. A table of those dates follows: Applicant Date of RRT Decision Date of Inclusion in Representative Actions P33 of 2003 16 February 1999 1 June 2000 P34 of 2003 16 February 1999 1 June 2000 P36 of 2003 24 August 1998 9 November 1998 * P38 of 2003 9 September 1998 8 December 1999

• P36 became part of an earlier representative action, the Herijanto action in 1998. 16 The second and third respondents submitted that there has been insufficient evidence filed in this Court to entitle it to assess whether there has been an acceptable explanation for the delay in the Applicants P33 and P34 becoming parties to the representative proceedings on 1 June 2000. With respect to Applicant P36 it was said there was no explanation. With respect to Applicant P38 it was said that there is an inadequate explanation. 17 Applicant P33 said in his affidavit, sworn on 4 February 2004, that after the Tribunal decision he and his wife, Applicant P34, contacted the Sydney Immigration and Student Service. They did this after they saw an advertisement in a Chinese language newspaper. The organisation made application on their behalf to the Minister under s 417 of the Migration Act 1958 (Cth). That application was unsuccessful and they were advised that the Minister was not prepared to exercise those powers. A Ms Liu from the Sydney Immigration and Student Service then directed them to Mr Adrian Joel who was conducting the Muin and Lie class actions and subsequently they became a part of the representative proceedings. Applicant P33 could not remember exactly when he and his wife contacted Mr Joel and became part of the class action. He said he thought it was sometime in 2001. He said that he had sought advice from other lawyers during this period but it was the Sydney Immigration and Student Service that directed him to Mr Joel in relation to the representative proceedings in the High Court. 18 It was submitted on behalf of these applicants that their delay was not inordinate and that no prejudice had been suffered by the respondents. It was argued that no leave is required to bring an application for prohibition or mandamus and that certiorari can be granted as an ancillary remedy. Reference was made to s 33 of the Judiciary Act. It was submitted that the order of Gaudron J, granting leave to issue an application for an order nisi by a certain time, was an order extending time pursuant to O 60 r 6 of the High Court Rules. 19 In the case of Applicant P36, the evidence in relation to delay was limited to an affidavit sworn by the applicant on 2 February 2004. In that affidavit he said he had been receiving assistance from Legal Aid in relation to the Tribunal application. After the Tribunal decision he went to see another lawyer who advised him of the class action and referred him to Mr Joel. He contacted Mr Joel 'very soon after' he was given his name by the second lawyer to whom he had spoken. From that time he dealt directly with Mr Joel who looked after all matters for him. He could not remember when he first contacted Mr Joel or when he became a party to the class action. 20 Similar submissions were made on behalf of Applicant P36 as were made on behalf of the Applicants P33 and P34. 21 Applicant P38 also filed an affidavit referring to the steps he had taken to apply for a protection visa and to seek review by the Tribunal. The Tribunal had affirmed the delegate's decision to refuse him a protection visa on 9 September 1998. He then sought judicial review in the Federal Court and eventually his application was dismissed on 27 January 1999. He had represented himself in Court and did not know that it was possible to apply to the High Court for constitutional writs in respect of the Tribunal's decision. Applicant P38 then sought legal advice. Legal Aid could not assist him but gave him a list of legal practitioners who might be prepared to help him. After approaching a number of them he contacted a representative of Adrian Joel and Co and was eventually included in the representative proceedings in the High Court. 22 The applicants have contended that there was an undertaking given by counsel for the Commonwealth before Gaudron J in November 2002 not to take any point about time limits in relation to the remitter proceedings. In my opinion, no such undertaking was given and that the question of any time limits imposed by O 55 in respect of the grant of relief under s 75(v) of the Constitution was not addressed. 23 As appears from the transcript of the proceedings before Gaudron J, initially on 1 November 2002, the following exchange took place: 'Mr Basten: ... Your Honour, the real question, I think - and I may be wrong about this - is what happens to the representative proceeding. We say, and we have said all along, that it is inapt and certainly at this stage we say that the only issues to be resolved are individual factual issues. Now, we could put on a motion and seek to have the representative proceeding dismissed now. Her Honour: But then you would be in a position to raise questions about time, would you not? Mr Basten: No I think we gave your Honour an undertaking about this in the High Court. We do not take any argument about the fact that they can now make application. There may be an issue as to whether, because they delayed for two years before they reached the representative class, that should be taken into account, but we do not say - 486A, for example, would not apply, I think, to anybody in the current classes. That is the 35-day limitation period which was the subject of S157. Her Honour: And that has a commencement date. Mr Basten: Yes. Her Honour: In any event, that is the subject of challenge, is it not? Mr Basten: It is, but it would not apply to any of these decisions because of its commencement date, as I understand it. Her Honour: And it relates only to privative clause decisions anyway, which these are not.' 24 It does appear from the transcript that in the proceedings before Gaudron J no submissions were made to her Honour about the operation of O 55 of the High Court Rules in relation to the individual orders nisi for which her Honour's order of 25 November 2002 provided. In my opinion, the substance of the debate before Her Honour and the purpose of her orders was to establish a mechanism for dealing with the thousands of individual cases bought up in the representative actions which had been commenced in the High Court. 25 There is a question whether an order for remitter by the High Court overcomes the need for an extension of any time limited by the High Court Rules for the commencement of the remitted proceedings. The Rules in this respect do not define or limit the jurisdiction of the High Court which is conferred directly by the Constitution. They rather regulate or define conditions for the exercise of the powers of that Court. So O 55 r 17 provides that 'an order nisi for a writ of certiorari ... shall not be granted' unless the application for the order is made not less than six months after the date of the impugned decision. In my opinion the remitter of the proceedings into the Federal Court upon the filing of a draft order nisi did not bring with it a condition restricting the exercise of the Federal Court's powers by reference to the Rules of the High Court which apply to the exercise of its powers. The remitter order having been made, no extension of time was necessary. 26 If I am wrong in that conclusion, the terms of the leave granted by Gaudron J to members of the representative groups to file their own applications seeking an order nisi, at a time plainly well in excess of six months after the Tribunal decisions affecting virtually all of them, does not suggest any reservation as to time that elapsed between the Tribunal's decision and the inclusion of those persons in the representative group. In my opinion, if leave were necessary it was in effect given by the operation of her Honour's order. 27 If I am wrong in the preceding conclusion, I would, in any event, consider it inconsistent with the objective and the terms of her Honour's order to now refuse any application remitted to this Court on the basis that it was made out of time for the purposes of the High Court Rules. 28 In my opinion, no extension of time is necessary by virtue of the operation of O 55 of the High Court Rules. Were it necessary, I would have granted it in each case. I should add, that on this view, the consent order made in respect of Applicant P40 was unnecessary and probably ineffective.

Notice to Admit Facts 29 In the proceedings relating to Applicants P33 and P36, the applicants had served on the respondents Notice to Admit Facts pursuant to O 18 r 2(2) of the Federal Court Rules. In each case the notice was dated 28 October 2003, filed on 29 October and served on or about that date. On 6 January 2004, the second and third respondents each filed answers stating that they did not admit the facts asserted in certain specified paragraphs of the notices. 30 On 30 January, the second and third respondents filed a motion in each proceeding seeking an extension of time for the filing of the response to the notice, being an extension to the date upon which the response was filed, namely 6 January 2004. Alternatively, they sought leave to withdraw any admissions deemed to have been made by virtue of O 18 r 2(2) of the Federal Court Rules. 31 An affidavit in support of the second and third respondents' motion was filed in the proceedings relating to Applicant P36, namely W160/2003, and relied upon in the other proceedings in which the Notices to Admit Facts had been filed. The affidavit was sworn by Ms Ling, a solicitor in the office of the Australian Government Solicitor. Without descending into the detail of that affidavit, it appears from that affidavit that, in the press of other interlocutory steps involved in the preparation of these cases for hearing, the need to comply with the time limit prescribed by the Rules for filing a reply to the Notice to Admit Facts was overlooked. 32 Order 18 r 2 of the Federal Court Rules provides: '2(1) A party to a proceeding may, by notice in accordance with Form 25 served on another party, require him to admit, for the purpose of the proceeding only, the facts or documents specified in the notice. (2) If, as to any fact or document specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts or documents, a notice in accordance with Form 26 disputing that fact or document, that fact or document shall, for the purpose of the proceeding, be admitted by the party on whom the notice to admit facts or documents is served in favour of the party serving the notice. (3) A party may, with the leave of the Court, withdraw an admission under sub-rule (2).' 33 In my opinion it is clear enough that the deemed admission has occurred as a result of inadvertence and that the second and third respondents should not be held to a false position because of it. 34 The Tribunal, as first respondent, has filed a submitting appearance in each of the applications. Its position as a respondent to the notice was evidently not addressed by the second and third respondents. The filing of a submitting appearance does not immunise a party from the effects of non-response to a Notice to Admit Facts. In this case, however, the same discretionary consideration operates to support the grant of leave to withdraw any deemed admission by the Tribunal. There is additionally the question of the Tribunal's statutory immunity and its application to the operation of O 18 r 2(2) at least in so far as it may be said to apply to the internal deliberations of the Tribunal. It is not necessary here, however, to resolve that question as the Tribunal will have leave to withdraw any deemed admission on the same basis as the second and third respondents. 35 In my opinion therefore, the appropriate course in each case is to permit the respondents to withdraw the admissions which they are deemed to have made by operation of O 18 r 2(2). Conclusion 36 For the preceding reasons I will make declarations that no extension of time is necessary in respect of the relief claimed by reason of O 55 of the High Court Rules. Leave will also be given to the respondents in the relevant cases to withdraw the admissions they are deemed to have made by reason of the applicants' Notices to Admit Facts filed on 29 October 2003. I certify that the preceding thirty-six (36)) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for Applicants P33, P34 and P36 of 2003: Mr AJ Goldfinch

Counsel for Applicant P38 of 2003: Mr DPA Moen Counsel for Applicant P40 of 2003: Mr L Ong Counsel for the Second and Third Respondents: Mr MT Ritter

Solicitor for the Second and Third Respondents: Australian Government Solicitor

Date of Hearing: 12 February 2004

Date of Judgment: 21 April 2004