S1775 of 2003 v Refugee Review Tribunal

Federal Court of Australia|2004-07-26|Before: Gaudron J, Emmett J

REASONS FOR JUDGMENT 1 By notice of motion filed on 10 May 2004, the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), applied for an order that the applicant's solicitors, Ward Maxwell & Co ('the Solicitors'), personally pay the Minister's costs of the proceeding, including the costs of the notice of motion. The ground on which the Minister seeks that order is that the proceeding was commenced and prosecuted without any proper consideration of its prospects of success. The Solicitors did not suggest that there was any doubt about the Court's power to make the order sought by the Minister. 2 The applicant in the proceeding is a citizen of India who arrived in Australia on 4 April 1997. On 3 July 1997, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 21 July 1997 a delegate of the Minister made a decision to refuse to grant a protection visa and on 14 August 1997 the applicant applied to the first respondent, the Refugee Review Tribunal ('the Tribunal'), for review of the delegate's decision. On 13 April 1999, the Tribunal affirmed the decision not to grant a protection visa. 3 At some time thereafter the applicant was named as a represented party in one or other of two proceedings in the High Court being Muin v Refugee Review Tribunal, S36 of 1999 ('Muin') and Lie v Refugee Review Tribunal, S89 of 1999 ('Lie'). It is significant that it is not clear in which proceeding he was so named. 4 In each of Muin and Lie, the respective plaintiffs sued in a representative capacity complaining of the procedures adopted by the Tribunal in reviewing adverse decisions of delegates of the Minister relating to claims for protection visas. Each proceeding was commenced in the High Court's original jurisdiction and in each case Gaudron J referred questions to a Full Court. In essence, the questions asked whether, upon certain facts stated, and the inferences if any, to be drawn from those facts, there was a failure by the Tribunal to accord procedural fairness or a failure to comply with ss 418(3) or 424(1) of the Act. They also asked, in the event of an affirmative answer, what relief should be given. 5 The facts stated in the two proceedings were similar although there was at least one significant difference. For the purposes of the referred questions, nothing turned upon the representative nature of the proceeding. Argument was confined to the cases of the plaintiffs themselves, each of whom was of Indonesian nationality and Chinese ethnicity. The essence of their claims was that, if they returned to Indonesia, they would be persecuted on racial grounds. In each case the delegate was required to consider circumstances in Indonesia relating to the treatment of Chinese, including the willingness and ability of the Indonesian authorities to prevent ill treatment. In the present case, the applicant claimed to fear persecution if he returned to Punjab. 6 On 8 August 2002, the High Court made orders in both of the proceedings, answering certain of the questions favourably to the plaintiffs. Specifically, the High Court answered 'yes' in each case to the question 'Was there a failure to accord the plaintiff procedural fairness?'. The Court said that prohibition should issue to prevent the Minister from acting on the Tribunal's decisions, that certiorari should issue to quash the decisions and that mandamus should issue to the Tribunal directing it to hear and determine the plaintiffs' review applications in accordance with the law. 7 Following those orders, Gaudron J made further orders in each of the proceedings. The effect of those further orders was, for present purposes, as follows:

(a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b) written arguments relating to the issues arising in relation to the decision under review.

(2) The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.' 22 Mr Khan's conduct is quite extraordinary. Notwithstanding that Gaudron J expressly reserved leave to apply to extend the time for filing an order nisi, on the ground that it was not possible to obtain proper instructions with respect to the continuation of the matter, Mr Khan blithely went ahead in filing in excess of 100 virtually identical affidavits making factual assertions into which he did not carry out any investigations. His only justification for that conduct was his assertion that he had a belief that the Tribunal always received country reports and that those country reports were never shown by the Tribunal to applicants for protection visas. 23 Mr Khan commenced this proceeding in the High Court without any consideration of the prospects of success of the proceeding. The material available to Mr Khan demonstrated only that the proceeding had no prospects of success at all on the basis asserted in his affidavit. No attempt was made to support any of the other grounds set out in the draft order nisi. In all of the circumstances, I consider that it was quite unreasonable for Mr Khan to have filed in the High Court his affidavit of 27 May 2003 without first considering whether there was any possible basis for making the assertion that the Secretary had given to the Registrar of the Tribunal written argument relating to the issues arising in relation to the delegate's decision concerning the applicant. 24 The circumstances included the fact that, while there are numerous references in the Tribunal's reasons of 13 April 1999 to 'independent evidence' concerning conditions in the Punjab region of India, there is no mention of any written argument from the Secretary of the Department. The information available to Mr Khan included the opinion apparently expressed by the applicant's former solicitor that his case was 'very weak' and that he was likely to be advised 'to seriously consider discontinuing the matter'. The circumstances also included the fact that, if it was not possible prior to 30 May 2003 to obtain proper instructions with respect to the continuation of the matter, liberty had been reserved to apply to extend the period of time within which to file an application for an order nisi in the High Court. 25 A possible consequence of the conduct of the Solicitors in commencing a large number of proceedings that may not have prospects of success is that, if there is a case amongst them that has legal merit, there is a risk that that case will be lost in the flood of unmeritorious cases. I consider that the Solicitors should be ordered to pay the Minister's costs of this proceeding, together with the costs of the motion. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 12 January 2005 Counsel for the Applicant: Mr N Perram

Solicitor for the Respondent: Australian Government Solicitor

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