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[1999] FCA 709
Federal Court of Australia
1999-05-27
Weinberg J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The first and seventh applicants, Carlos Cabal Peniche ("Peniche") and Marco Pasini Bertran ("Bertran"), are the subject of proceedings under the Extradition Act 1988 (Cth) ("the Extradition Act") as a result of requests made by the Mexican Government for their extradition for offences allegedly committed by them in 1993 and 1994. They are presently in custody awaiting a contested hearing in the Magistrates' Court in which a determination will be sought that they are eligible for surrender to Mexico. Orders will also be sought that they be committed to prison to await surrender under a surrender warrant. 2 The second applicant, Teresa Pasini Cabal, is the wife of the first applicant. The third, fourth, fifth and sixth applicants are their children. The seventh and eighth applicants are the brother and sister-in-law of the second applicant. 3 On 13 November 1998 the second and seventh applicants made application under the Migration Act 1958 (Cth) ("the Act") for protection visas on the ground that they were refugees. The second applicant joined as part of her application the four children who are the third, fourth, fifth and sixth applicants, and the seventh applicant joined as part of his application the eighth applicant, his wife. The first applicant did not, at that stage, make any application for refugee status, and was not named in the second applicant's application as a member of the family unit on whose behalf that application was made. 4 Those applicants who then sought refugee status claimed that the Mexican Government was pursuing criminal proceedings against Peniche and Bertran for political reasons, and was persecuting them and their families on the ground of their political opinion. They claimed, therefore, that they had a "well founded fear of persecution" within the meaning of that expression in Art 1A(2) of the 1951 Convention Relating to the Status of Refugees. 5 On 8 December 1998 a delegate of the Minister refused the protection visa applications. On 14 December 1998 the second and seventh applicants applied to the Refugee Review Tribunal ("the RRT") to review the decision of the delegate. The RRT, pursuant to s 425(1)(a) of the Act, scheduled 22 February 1999 as the date on which it proposed giving the applicants an opportunity to appear before it to give evidence. 6 The solicitors then acting for the second to eighth applicants requested the RRT not to proceed with its hearing, or its review, until the hearing and determination of the extradition proceedings. They claimed, in part, that it was oppressive and unfair for the RRT to proceed with its review prior to Peniche and Bertran having an opportunity to appreciate fully the case which was to be made against them by the Mexican Government. The claimants were entitled, so it was said, to assemble and rely upon the same material as would be used by Peniche and Bertran in support of their contention that they were not eligible for surrender by reason of the fact that there were available to them extradition objections pursuant to ss 7(a) and 7(b) of the Extradition Act. These provisions allow for extradition objections in relation to what are described as "political offences", and what might be termed "persecution". 7 On 22 February 1999 the RRT refused the claimants' application to adjourn the RRT hearing set down for that date. The Tribunal member said that she accepted that the applicants before the RRT may need time to provide further evidence, and that she would deal with that issue at the conclusion of the hearing. 8 On the same date, proceedings were commenced in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") seeking a writ prohibiting the RRT from further proceeding with the review. The applicants in that proceeding contended that the RRT's decision to refuse them an adjournment constituted a breach by the RRT of its statutory duty to act fairly and according to "substantial justice and the merits of the case" as required by s 420 of the Act. On that date Merkel J refused an application for urgent interim relief. 9 The RRT proceeded to hear the application on 22 and 23 February 1999. The matter then returned before Merkel J in this Court on 25 February 1999. His Honour was asked to find that the RRT had conducted the hearing before it in breach of the rules of natural justice. He held that there was jurisdiction to entertain that application notwithstanding the operation of s 476(2) of the Act because the application had been made under s 39B of the Judiciary Act, and not under Pt 8 of the Act. His Honour distinguished the decision of the Full Court in Minister for Immigration and Multicultural Affairs & Anor v Ozmanian (1996) 71 FCR 1 (which appeared to preclude such review) upon the basis that the conduct which the applicants in the proceedings before his Honour were seeking to review was conduct engaged in for the purpose of making a decision where that decision had not yet been made, and not, as in Ozmanian, conduct engaged in for the purpose of making a decision where that decision had been made prior to the application for review. 10 His Honour concluded, however, that the RRT had not denied those applicants an opportunity to deal with the evidence and material before the RRT in accordance with the rules of natural justice. 11 His Honour also cautioned against interfering with the processes of the RRT in a manner which would lead to "fragmentation of the processes of administrative decision-making" - see Pasini v Boland [1999] FCA 188 at par 32, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 per Mason CJ. 12 Merkel J went on to observe at par 36 that there had been no unfairness on the part of the RRT in requiring the second and seventh applicants to give evidence as to why they claimed to have a well founded fear of political persecution. His Honour said at pars 36-37: "Their applications for protection visas were lodged on 13 November 1998. As was pointed out by their counsel, they have had at their disposal considerable resources to pursue their claim of political persecution; the resources include a number of lawyers acting for them in Mexico and in Australia. Ultimately, all that counsel could put forward to support the ground of unfairness was a series of events since November 1998 which demonstrated that the applicants and their families had been under enormous personal pressures, were parties to numerous proceedings and had suffered a general dislocation to their lives as the result of the cancellation of their visas and the immigration detention and subsequent imprisonment of Pasini and Peniche. Whilst I can accept all of those matters, I am not satisfied that they demonstrate that it was unfair, let alone a breach of the rules of natural justice, for the RRT, on 22 and 23 February, to proceed to receive evidence from Pasini and Cabal in support of their claim that they each had a well founded fear of political persecution. The RRT has not stated that it will not hear further evidence from Pasini or Cabal. It is as open to Pasini and Cabal to request that they be permitted to give further evidence, as it is open to the RRT to request that they give further evidence. Whilst the RRT received evidence from Pasini and Cabal over two days, their counsel did not point to any difficulty that they had in giving their evidence notwithstanding the availability of the transcript." 13 The application was dismissed with costs. 14 As it happened, the RRT indicated to the applicants that it would give them until 21 May 1999 to provide any additional material upon which they might seek to rely in support of their application to review the decision of the delegate. It appears that some such material has been provided to the RRT in accordance with that offer, though the applicants in the proceeding before me complain that there is a good deal more material to be analysed and, if relevant, relied upon. 15 On 18 May 1999, only three days before the expiration of the time limit imposed by the RRT upon the receipt of further material, the applicants in the proceedings before the RRT changed their legal representation. The firm of Messrs Fernandez Canda & Co then assumed carriage of their applications for refugee status. 16 On 19 May 1999 a lengthy and detailed letter was forwarded to the RRT informing it of the change of legal practitioners, and seeking additional time within which to prepare and lodge the voluminous materials said by the new solicitors to be available to the applicants in support of their claims, and to prepare a submission regarding their cases. The new solicitors indicated that it would be impossible for them to perform that task adequately within the three days that remained before the time limit imposed by the RRT expired. Indeed, they said that they had not yet received the file from their predecessors. 17 The letter went on to indicate that the applicants in the proceedings before the RRT sought to adduce oral and/or written evidence from a large number of witnesses (including expert witnesses) from Mexico and from the United States of America. In addition, there were many hundreds of pages of documentary evidence to be tendered which would need first to be translated into English. Moreover, complaint was made about the manner in which the applicants' case had been conducted by their previous legal representatives, including the comment that the matter had been supervised for the most part by a junior solicitor. 18 The applicants' new solicitors then foreshadowed a desire on the part of the third applicant in the present proceeding, Carlos Cabal Pasini, now aged fifteen years, to give oral evidence as provided for in s 425(1)(a) of the Act. It should be noted that during the hearing of this matter before the RRT on 22 and 23 February 1999 the second applicant, Teresa Pasini Cabal, the mother of the third applicant, had indicated that none of the children would be giving evidence before the RRT. Both she and her children were legally represented throughout that hearing. 19 In their letter to the RRT, the new solicitors also sought to invoke what is known as the "family unity principle". That principle provides that all members of a family group are entitled to protection if any one of the group is declared to be a refugee within the meaning of that expression in the Convention. It was introduced into Australian domestic law by the Migration Regulations 1994 ("the regulations"), and is given legislative effect in item 1126 of Sch 1, and sub-class 866 of Sch 2 to the regulations. The letter of 19 May 1999 states, in part: "Unfortunately, Mrs Teresa Pasini Cabal and the children included in her application have made a separate Protection Visa application to that of her husband and the children's father, Mr Carlos Cabal. Mr Cabal's application is presently before a delegate of the Minister for determination but a decision has not been made. Mrs Cabal and the children assert that they are refugees in their own right. Nevertheless, their applications are heavily dependent on facts relating to the activities of Mr Cabal. Further, if Mr Cabal were to be declared a Convention refugee and they had been included in his application, they would have been entitled to protection visas independently of whether they themselves qualify as refugees under the Convention definition. Because the operation of the family unity principle is restricted by the manner in which the Regulations have been drafted to family members included in an application, Mrs Cabal and the children are presently unable to rely on the family unity principle so far as Mr Cabal is concerned. The result is that they are artificially deprived of the opportunity to take advantage of a provision of the Regulations which exists for the benefit of persons in their position." 20 The letter then proceeds to request the RRT to defer its decision in relation to the applicants before it until Mr Cabal's application is determined by the Minister's delegate. If he were successful in that application, the letter states, that fact would greatly assist the RRT in relation to the application before it. If Mr Cabal were unsuccessful before the delegate, it was intended to seek RRT review of that decision. It would then be open to the Tribunal to consolidate the two applications and, in the process, bring the family unity principle into play if any of the family members succeeded in obtaining a declaration of refugee status. 21 Also on 19 May 1999 a letter was sent by the new solicitors to the Minister for Immigration and Multicultural Affairs. That letter was signed by the second applicant. It referred to the applicants' case before the RRT, and continued: "Pursuant to Regulation 2.08A of the Migration Regulations, I, Teresa Pasini Cabal (Date of birth - 13 July 1962), the original applicant in Refugee Review Tribunal case number V98/09626, hereby request that my spouse, Carlos Cabal Peniche (date of birth - 15 December 1956), be added to my Protection Visa application as an additional applicant. I state that the proposed additional applicant, Carlos Cabal Peniche, is my spouse and was in Australia ie within the Migration Zone, at the time of my application and has not left the Migration Zone since that time." 22 A copy of that letter was also sent to the Member who constituted the RRT for the purposes of the application for review. 23 On 20 May 1999 the RRT replied to the letter sent to it on 19 May 1999. It stated, in part: "The Tribunal provided an opportunity for all applicants in these cases to give oral evidence at the hearing on 22 and 23 February 1999. Mrs Cabal advised the Tribunal at the hearing that the children would not be giving evidence. The Tribunal has already allowed considerable time after the hearing for the applicants to put in additional submissions and further evidence. It is now 5 months since these review applications were lodged and the Applicants have been represented by legal advisers in Australia for the whole of this period. The Applicants have also employed lawyers in Mexico during the review process to assist in gathering evidence and still have the services of the same Mexican lawyers. Mr Cabal is not currently an applicant before the Tribunal. The Tribunal can only deal with applicants that are before it. Accordingly, the Tribunal is not prepared to grant any further extension of time in these cases." 24 Also on 20 May 1999 the RRT wrote to Messrs Fernandez Canda & Co refusing an oral application for an extension of time until Monday 24 May 1999 to provide material in support of the applications before it. The Tribunal reiterated that it was not prepared to grant any further extension of time in these cases. 25 Messrs Fernandez Canda & Co responded to the RRT's letters of 20 May 1999 by writing again on that date repeating their request that the RRT hear the oral evidence of the third applicant in these proceedings. They asserted that the third applicant had a right to be heard pursuant to s 425(1)(a) of the Act. This was so whether or not Mrs Cabal had indicated at the first hearing that none of the children would be giving evidence. No decision had yet been made in relation to the RRT review. Until it was made, the third applicant had a right to change his mind. 26 The new solicitors also drew attention to the fact that they had made a formal request to the Minister under reg 2.08A of the regulations and, pursuant to that request, the first applicant, Peniche, also wished to exercise his right to give oral evidence under s 425(1)(a) of the Act. 27 The RRT responded immediately to the letter of 20 May 1999 by writing again on the same day to Messrs Fernandez Canda & Co, and stating in part: "Regulation 2.08A only enables persons to be added to an application before it is decided at the primary stage. Section 412(2) of the Migration Act 1958 makes it quite clear that only a person who has been the subject of a primary decision may apply for review. Mr Cabal is not an applicant before the Tribunal and has no rights under section 426." 28 The reference to "Mr Cabal" is, of course, a reference to the first applicant, Peniche. 29 On 25 May 1999 the applicants brought proceedings in this Court seeking an order of review under Pt 8 of the Act in respect of two decisions made by the RRT under the Act and the regulations. The decisions which were the subject of this application were those which had been notified to the applicants on 20 May 1999, namely the decisions: (i) refusing to accept the validity of the addition of Carlos Cabal Peniche to the application of his spouse, Teresa Pasini Cabal, under reg 2.08A of the regulations and to consider his application in accordance with the Act and regulations; and (ii) refusing to give the third applicant, Carlos Cabal Pasini, an opportunity to appear before it to give evidence as required by s 425(1)(a) of the Act. 30 The applicants also seek an order of review under s 6 of the Administrative Decisions (Judicial Review) Act 1977 and orders in the nature of mandamus and prohibition, and an injunction pursuant to s 39B(1) and/or alternatively s 39B(1A)(c) of the Judiciary Act requiring the RRT to consider and determine the application of the second applicant on the basis that her spouse, the first applicant, is an applicant validly included in her application in terms of reg 2.08A of the regulations, and also requiring the RRT to provide the third applicant with an opportunity to appear before it to give evidence, as required by s 425(1)(a) of the Act. The applicants rely for this relief upon the same matters as are said to give rise to the application under Pt 8 of the Act. They also challenge the RRT's refusal to grant an extension of time within which to lodge further material in support of the applicants' claims. 31 One form of relief which is sought pursuant to the application brought in reliance upon the provisions of the Judiciary Act is an interlocutory injunction restraining the RRT from proceeding further with the subject applications for review pending the determination of the present proceedings. It is that application for interlocutory injunctive relief which is the subject of this judgment. 32 It is clear that in order to ground a claim for an interlocutory injunction in circumstances such as these the applicants must demonstrate both that there is in relation to any claim said to ground such interlocutory relief "a serious question to be tried", and that "the balance of convenience" favours the grant of such interlocutory relief - Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464. 33 Mr Gerkens, who appeared on behalf of the applicants, submitted that the material before the Court demonstrated that both these requirements had been met. Mr Gunst QC, who appeared on behalf of the first respondent, and also on behalf of the second respondent though only for the purpose of indicating that it would abide any decision of the Court, submitted that the points raised by the applicants did not disclose any serious question to be tried and that, even if they did, the balance of convenience weighed heavily against the grant of the interlocutory relief sought. He submitted further that even were this not so, the interlocutory relief sought should be refused in the exercise of the Court's discretion.
Do the points raised by the applicants raise a serious question to be tried? 34 The contention that reg 2.08A of the regulations entitles the first applicant to be added as a party to the earlier claim for refugee status made by the second applicant (which had been made on her own behalf, and on behalf of their four children) is, I believe, arguable, but in my view only barely so. 35 Regulation 2.08A relevantly provides: "(1) If: (a) a person (in this regulation called "the original applicant" applies for a permanent visa of a class for which Schedule I permits combined applications …; and (b) after the application is made, but before it is decided, the Minister receives, in writing in accordance with Division 2.3 a request for the original applicant to have the spouse, or a dependent child, of the original applicant (in this regulation called "the additional applicant") added to the original applicant's application … … then: (e) the additional applicant is taken to have applied for a visa of the same class; and (f) the application of the additional applicant: (i) is taken to have been made at the time when the Minister receives the request; and (ii) is taken to be combined with the application of the original applicant; and (iii) is taken to have been made at the same place as, and on the same form as, the application of the original applicant. …" 36 While it may be argued, as it was by Mr Gerkens, that this regulation can be invoked at any time before a final decision on the merits is made by the RRT, that is not what the regulation, in its plain terms, states. 37 There is no doubt that the scheme of the Act provides for the Minister to decide whether or not to grant a protection visa - see ss 65 and 66 of the Act. Indeed s 66 speaks in terms of a "decision" by the Minister, and its notification to an applicant, after which the Minister is, presumably, functus officio. The reference to "Division 2.3" of the regulations in reg 2.08A is a reference to a part of the regulations which deals exclusively with communications between an applicant and the Minister prior to the primary decision being made. It would be somewhat odd to construe reg 2.08A as requiring the Minister to serve as a "post box" for receipt of a request to have an additional party added to an application which is now before the RRT for review of an earlier decision already taken. 38 The structure of the Act as set out in ss 45, 46 and 47 suggests strongly that reg 2.08A is intended to allow an additional applicant to be added to an original application prior to the decision upon that application being made by the Minister, and not thereafter. That interpretation is consistent with s 412(2) of the Act which limits an application for review by the RRT to being made by a non-citizen who is the subject of the primary decision. 39 I note that an argument can be put that reg 2.08, which deals with applications by new born children, operates in a different manner, and may be invoked even after the Minister has rendered the primary decision. The language of reg 2.08 is, however, significantly different from that of reg 2.08A. No reference is made in reg 2.08 to the Minister receiving any request in writing prior to "the decision" being made. In any event, I am not persuaded that reg 2.08A should necessarily be construed in exactly the same manner as reg 2.08 in this regard. 40 If the applicants' contention regarding reg 2.08A does reach the point of demonstrating that there is a serious question to be tried concerning this issue, it does so only by the barest margin. That is a matter which is relevant to whether or not to grant the interlocutory relief sought. The two legs of the test, namely serious question to be tried, and balance of convenience, need not be considered in isolation from each other. A doubtful claim which nevertheless raises a serious question to be tried, may be refused if there is not a marked balance of convenience in favour of it - see Bullock (supra) at 472. 41 As regards the applicants' contention concerning the supposed right of the third applicant to give evidence before the RRT before it delivers its reasons for decision, I am firmly of the view that this point does not give rise to any serious question to be tried. 42 Section 425(1) of the Act provides as follows: (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary." 43 It is plain that the third applicant was given an opportunity to appear before the RRT to give evidence. The RRT was told by his mother, with his legal representative present, that he would not be giving evidence. There is nothing in the language of s 425(1)(a) which suggests that an applicant, having been given that opportunity, must be given another such opportunity, if he or she has changed his or her mind. There is also nothing in the language of that paragraph which suggests that the RRT is required to defer delivering its decision until that evidence has been received. The argument advanced on behalf of the applicants seems to me to be wholly untenable, and to require a distorted interpretation to be given to the clear language of s 425(1)(a). It is unnecessary, therefore, to deal with it any further at this point. 44 As to the applicants' claim that there is a serious question to be tried regarding the RRT's refusal to grant an extension of time within which to complete the material which they wish to have the RRT consider, and their claim that the RRT's refusal to grant any such extension of time constitutes a denial of natural justice, that claim must, in my view, be rejected. 45 The RRT has given those applicants whose claims are before it from 23 February 1999 to 21 May 1999, a period of about three months, to provide any additional material which is to be relied upon. Those applicants have been represented throughout by competent and experienced legal practitioners. The fact that they have chosen to dispense with the services of those practitioners, and have retained new solicitors, cannot require the RRT to grant any additional time within which to provide further material, or within which to prepare further submissions. The discretion which is vested in the RRT as to whether or not to grant an extension of time for the receipt of such material is one with which this Court would not lightly interfere.
Balance of convenience 46 I have come to the conclusion that the balance of convenience in this matter is against the grant of the interlocutory relief sought. It would be quite wrong to restrain a body such as the RRT from delivering its reasons for decision in a matter like the present absent cogent reasons favouring that course. Those reasons have not been shown to exist. 47 If there is any merit in the applicants' contentions, they are not wholly shut out from pursuing the matter further. While there are severe limitations upon the scope for review of "RRT reviewable decisions" in this Court pursuant to Pt 8 of the Act, as is emphasised by the recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, there may be avenues for relief available in that Court pursuant to s 75(v) of the Constitution. 48 There is also nothing to stop the first applicant from presenting to the delegate any material which he regards as relevant to his claim. The delegate has yet to make a decision in relation to that claim. If that claim is rejected and the first applicant considers it appropriate to seek to review that decision, that material, and any other material which is relevant, can be presented to the RRT. 49 The potential loss to the second to eighth applicants of the opportunity to take advantage of any material which might be provided in support of the first applicant's claim is a matter which could have been anticipated right from the outset, when their claims were first made, in November 1998. At that stage a conscious decision appears to have been taken by the second applicant to include in her claim for refugee status her children, but not her husband. That was a choice which might have been thought to be beneficial to their claims. If it turns out not to be so, it is at least a matter the responsibility for which she, and her legal advisers, must accept. 50 The potential for abuse is obvious if applications such as that which is presently before the Court are too readily granted. It is plainly desirable that the RRT decide matters brought before it as expeditiously as possible provided it does so consistently with its statutory obligations pursuant to s 420 of the Act (as explained by the High Court in Eshetu, (supra)). 51 The possibility that there might, theoretically, be inconsistent findings made by different delegates, or by differently constituted RRTs, based on essentially the same material is obviously one factor in favour of granting the interlocutory relief sought. So also is the desirability of avoiding, if possible, a multiplicity of proceedings. These considerations do not, however, carry great weight when compared with the harm which would be done to the entire process of review if applications such as the one presently before the Court were to be given any undue encouragement.
Delay 52 In my view there has been substantial and unexplained delay on the part of the applicants in instituting the present proceedings. They have been instituted at what might be described as "the eleventh hour" immediately prior to the delivery by the RRT of its reasons for decision. Those reasons are, I have been told, expected imminently. 53 The applicants have been represented throughout, as I have said, by experienced and competent legal practitioners. One of the firms of solicitors which had acted jointly for them is well known as having a specialist migration law practice. They have chosen to change their legal representation within days of the conclusion of this matter in the RRT. That is not a course which should attract any particular degree of sympathy for their position. It provides neither excuse nor justification for the last minute flurry of activity which has ensued since their new solicitors were instructed to act. 54 Even if I were of the view that the applicants had demonstrated that there was a serious question to be tried in relation to one or more of their contentions, and that the balance of convenience favoured their case, I would not, for the reasons set out above, including in particular the delay which has attended this application, and the risks of fragmentation of the administrative process associated with it, exercise my discretion to grant the interlocutory relief sought. 55 The order of the Court is that the application for interlocutory relief is dismissed, with costs. I shall hear the parties in relation to any further orders. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Solicitor for the Applicants: Fernandez Canda & Co
Solicitor for the Respondents: Australian Government Solicitor
Peniche
Minister for Immigration & Multicultural Affairs