Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20

Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20 - HCA 2001 case summary — Zoe

[13]

Mrs P T ("the applicant") seeks the making of an order nisi for the constitutional writ of prohibition and an associated writ of certiorari to render prohibition effective. Because of an expressed concern of retaliation against her were this application refused, a request was made that she be identified only by initials. The Australian public has no interest in knowing her identity. I therefore agreed to that request. The applicant will be so described. There may be a problem with respect to the applicant's request for the writ of certiorari in that the delegate has not been named as a party to the proceedings[2]. However, I pass that technical problem by for the application has larger problems to which I must now refer.
The applicant claims relief against the Minister for Immigration and Multicultural Affairs ("the Minister"). She does so on the basis that the Minister, acting under the Migration Act 1958 (Cth) ("the Act"), by his delegate, failed to accord the applicant natural justice in the making of a decision on 11 July 2000 and otherwise in making a decision which involved jurisdictional error of law. On that day the delegate decided that the applicant should be denied refugee status. She refused the applicant a protection visa.
Normally, following rejection of such relief by a delegate, a disappointed applicant could seek review before the Refugee Review Tribunal ("the Tribunal"). The Tribunal could then hear the application on its merits and substitute its own decision for that of the primary decision-maker[3]. By s 425 of the Act, the Tribunal is obliged to conduct a hearing at which the applicant has an opportunity to be heard. It must do so unless the Tribunal has decided to make a determination in favour of the applicant.
By a series of misadventures, explained in the evidence, the applicant failed, within the time limited, to lodge her application for review by the Tribunal. She attempted to lodge a late application; but this was rejected. She then asked the Minister, in his discretion, to provide her with a visa[4] or to permit her to make a further application for a protection visa. The latter course is permitted by s 48B of the Act. However, these requests were refused by the Minister.
Because the applicant's complaint is one concerning procedural fairness and jurisdictional error, and because, in respect of the complaint of procedural fairness at least, this would be excluded from the jurisdiction of the Federal Court exercising its powers of judicial review in cases of this kind, the application has been made to this Court. This Court is the only place in which judicial relief of the kind sought by the applicant can now be obtained. She invoked that relief pursuant to s 75(v) of the Constitution.
As I have had occasion to say in previous cases, it would be no misfortune if this Court could be spared matters of this kind. However, the restrictions in the Act, and the rigidity in the administration of the Act in respect of minor time defaults, mean that the burden falls on me. It is one that I have to shoulder because of the cardinal importance of the relief afforded by the constitutional writs and because, at least in respect of the complaint of the breach of the rules of natural justice, this Court cannot remit the matter elsewhere.
The principle governing the issue of an order nisi is not in doubt. If the applicant can show a reasonably arguable case, she is entitled to the relief that she seeks[5]. The question is, therefore, whether her case falls within that class.

[14]

In support of the applicant's case three affidavits were read. These were, first, an affidavit of the applicant herself; secondly, an affidavit of the applicant's solicitor, Mr Henry Christie (who appeared before the Court on her behalf), and, thirdly, an affidavit by Ms Vanessa Moss, also a solicitor who works with Legal Aid in Perth. For the Minister an affidavit by Mr P J Corbould was read. Reference will be made to that affidavit later. From these affidavits the following facts emerge.
The applicant is a national of Sri Lanka. She is of Tamil ethnicity. She arrived in Australia on 7 May 1999 to visit her daughter who lives in this country. She travelled to Australia on a visitor's visa. The visitor's visa was valid for a year. Two days short of the expiry of that year, namely on 5 May 2000, the applicant made an application for a protection visa. She claimed that Australia owed her obligations under the Act and pursuant to the Refugees Convention which is relevantly incorporated into Australian law by force of the Act[6]. She claimed that she was a refugee.
The applicant complained of experiences which she said she had undergone in Sri Lanka as a member of the Tamil community during and after racial riots which broke out there in 1983. She claimed to have been a victim of those riots. She said that they had forced her to flee from the capital, Colombo, where she lived to take refuge in Jaffna, an area to the north of the island where there is an ethnic Tamil majority.
Subsequently, the applicant returned to Colombo for her daughter's wedding. She became stranded there after fresh fighting broke out. Thereafter, she claimed to have spent time travelling between Sri Lanka, India, the Maldive Islands and Australia. She said that this was necessary "to avoid the thugs tracing me and intimidating my life".
She alleged that she had been intimidated in Colombo by Sinhalese thugs who demanded money from her because her family had property in Colombo of great value. This property has apparently now been transferred to her children, one of whom, as I have said, lives in Australia.
In her application, the applicant claimed that the security situation in Sri Lanka was bad and deteriorating, that arbitrary arrests were taking place and that the authorities were not able to protect innocent civilians of Tamil ethnicity, like herself. She expressed fear for her life because of the criminal element in Colombo and as a result of the security problem more generally. She also expressed concern that the authorities in Sri Lanka either could not, or would not, defend her from such criminal elements who were subjecting her to extortion. It was upon this basis that she claimed an entitlement to be treated as a refugee.

[37]

The scheme of the Act reinforces the provisions of s 54. A person dissatisfied with a decision of the delegate may apply for review before the Tribunal where there is a full opportunity to make an oral representation and verbal elaboration. The only reason that the applicant lost that opportunity was a mistake about, and delay in, filing her application to the Tribunal within time. Whilst interviews by the primary decision-maker are often desirable and probably useful in most cases, it would contradict the scheme of the Act to hold that they are universal or obligatory in a case such as the present.
Nor does the material disclosed in the delegate's decision suggest a failure on the delegate's part to put something important to the applicant which might otherwise have been unexpected or surprising and to which the applicant should have been given an opportunity to respond. For example, the "country information" on Sri Lanka is unremarkable and apparently balanced. It does not suggest a sudden alteration in the security situation or other developments that would reasonably have come as a surprise to the applicant and caught her off guard when first read in the decision.
To these factors may be added the other matters mentioned by the delegate in reaching her decision. The applicant lived in Australia, presumably with her daughter and son-in-law, until virtually a year after her arrival on a visitor's visa. Then, on the eve of the expiration of that year, she lodged an application for a protection visa. In my view, it was open to the delegate to conclude from this, from the applicant's earlier travels, from her renewal of her Sri Lankan passport while she was resident in Australia on a visitor's visa and the other materials provided, that the applicant had not established the grounds that would qualify her for refugee status.
The delegate might, indeed, have invited the applicant to an interview. On the evidence before me that is the usual practice. However, I cannot accept, in the circumstances proved, that the failure of the delegate to do so amounted to an arguable departure from what the rules of natural justice required in the applicant's case. I bear in mind the fact that the asserted failure would deprive the delegate of jurisdiction to reach the decision that she did or any decision.
There is no universal rule that administrators making a decision affecting a person are bound to hold a hearing and conduct a face-to-face interview. Most administrative decisions are made without such a facility. To impose it unnecessarily would inflict a rule of inflexibility[15] as well as one having significant economic costs. Especially having regard to the provisions of the Act, such a rule could not be imposed on delegates of the Minister deciding applications such as the present.

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Judgment (54 paragraphs)

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Cases Cited (8)