PT, Ex parte - Re Minister for Immigration and Multicultural Affairs P2/2001 [2001] HCATrans 81 (7 March 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P2 of 2001

In the matter of -

An application for a Writ of Certiorari and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

PT

Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 7 MARCH 2001, AT 4.41 PM

Copyright in the High Court of Australia

MR H.N.H. CHRISTIE: May it please your Honour, I appear on behalf of the applicant/prosecutor in this matter. (instructed by Henry Christie).

MR M.T. RITTER: May it please your Honour, I appear on behalf of the respondent in this matter. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr Christie.

MR CHRISTIE: Your Honour, in this matter the applicant/prosecutor seeks orders nisi for writs of prohibition and certiorari on the basis as set out in the draft order and in the submissions filed on her behalf. As a further matter, which has not been previously raised, I am also instructed by the prosecutor that an order for suppression of the prosecutor's name in these proceedings.

HIS HONOUR: It is a bit late to be asking that, is it not? It has been in the law list and, I mean, if there is no objection, I have no difficulty myself providing an anonymity order. There is no public interest in Australia in knowing the name of the applicant, but her name has been in the law list, so it has been left a little late to be asking for such an order now.

MR CHRISTIE: Yes, your Honour, it should have been raised earlier, I apologise for that, but if I could have that order at this stage, even though I appreciate it would only be partially successful.

HIS HONOUR: Yes. Does the Minister have any objection to that being ordered, Mr Ritter?

MR RITTER: Your Honour, I have no instructions on that matter because of the lateness as to which it is raised. If I could speak simply for myself, I cannot see that it would be a matter to which the Minister would object, but I do say that expressly without having the opportunity to take instructions.

HIS HONOUR: Yes. Well, in a number of these matters, at least one that I can remember, a similar application was made and no objection was raised by counsel for the Minister, so I will simply direct that no reference be made in the transcript to the name of the applicant, who will simply be known as the "applicant". She is not the prosecutor yet. She becomes the prosecutor if you get your order nisi.

MR CHRISTIE: I am obliged, your Honour. Your Honour, the applicant relies on the evidence contained in the following affidavits in this matter - - -

HIS HONOUR: Well, could we just get the record in order please. Which are the affidavits that you read in support of your application?

MR CHRISTIE: Your Honour, the affidavit of the applicant, sworn on 30 January 2001, with the annexures, that runs from pages 1 to 37.

HIS HONOUR: Just let me see that. You have seen this, Mr Ritter, have you?

MR RITTER: Yes, I have, your Honour.

HIS HONOUR: Do you have any objection to any of the content of the affidavit?

MR RITTER: No, I do not, your Honour.

HIS HONOUR: Do you wish to cross-examine the applicant?

MR RITTER: No, your Honour.

HIS HONOUR: Yes, very well. I read the affidavit of the applicant, which is in the file of the Court, sworn 30 January 2001. Read without objection. Yes?

MR CHRISTIE: Your Honour, there is the affidavit for myself, Henry Neil Howard Christie, sworn on 27 February 2001, which - - -

HIS HONOUR: You have seen that, too, Mr Ritter?

MR RITTER: I have. Again, the same applies: no objection, and no desire to cross-examine Mr Christie.

HIS HONOUR: It would be a little embarrassing if you did. Very well, I read the affidavit of Henry Neil Howard Christie, solicitor, sworn 27 February 2001. Read without objection. Yes?

MR CHRISTIE: And, your Honour, the affidavit of Vanessa Margaret Fothergill Moss, sworn 28 February 2001.

HIS HONOUR: Is there any objection to that affidavit, Mr Ritter?

MR RITTER: No, the same applies, your Honour.

HIS HONOUR: Yes, very well. I read without objection the affidavit of Vanessa Margaret Fothergill Moss, solicitor, sworn 28 February 2001. Is that your evidence?

MR CHRISTIE: Yes. That is the evidence on behalf of the applicant.

HIS HONOUR: Yes.

MR CHRISTIE: There is one further affidavit which I understand my learned friend may be relying on.

HIS HONOUR: Yes, indeed. Do you have any evidence that you wish to read, Mr Ritter?

MR RITTER: Yes, your Honour. There is an affidavit sworn by Peter John Corbould, on 6 March 2001, together with annexures 1 to 3, which appear up to page 54 of the affidavit. We seek to rely on that affidavit.

HIS HONOUR: Yes. Do you have any objection to the reading of that affidavit, Mr Christie?

MR CHRISTIE: No, your Honour.

HIS HONOUR: Do you wish to cross-examine Mr Corbould?

MR CHRISTIE: No, your Honour.

HIS HONOUR: Very well. I read without objection the affidavit of Peter John Corbould, sworn 6 March 2001. Mr Corbould is a solicitor, and that affidavit is read without objection. Yes, is that your evidence?

MR RITTER: It is my evidence, your Honour.

HIS HONOUR: Is there any evidence in reply?

MR CHRISTIE: No, your Honour.

HIS HONOUR: Very well. What do you say, Mr Christie? I might say that - - -

MR CHRISTIE: Your Honour, the - - -

HIS HONOUR: I should tell you I read earlier today, very much earlier today, the affidavits filed in your case and the written submissions which you were good enough to send in advance - thank you for doing that. Mr Ritter, I only received your written submissions at lunch, and I had to leave the building at lunchtime, so I have not read them yet.

MR RITTER: Yes.

HIS HONOUR: So that it will be necessary for me to take a little time, when you are making your submissions, to read your written submissions.

MR RITTER: Yes, your Honour.

HIS HONOUR: Yes, Mr Christie.

MR CHRISTIE: Your Honour, there are two main substantive grounds for this application. Firstly, a breach of natural justice, and secondly, jurisdictional error of law. Your Honour, in my submission, it is perhaps the second of those grounds which are manifest, and are perhaps the stronger of the two grounds, and perhaps it would be convenient to take your Honour to the evidence and contentions in relation to that error, before dealing with the breach of natural justice issue.

HIS HONOUR: My understanding is that a breach of natural justice can itself amount to an error of jurisdiction. What is the content of the second ground that you are urging?

MR CHRISTIE: The content of the second ground is substantially the failure to address the essential criteria for an application for a protection visa, namely whether the applicant is a refugee as defined by the Refugees' Convention and, in particular, whether the applicant had a well-founded fear of persecution if returned to Sri Lanka.

In very short summary, your Honour, the delegate concluded that the applicant was not of adverse interest to the Sri Lankan authorities but the real contention made by the applicant, and I will go through the evidence of this - was that the applicant feared for her life and her property and that she had been subjected to continued threats and extortion by certain Sinhalese members of the community over a period stretching back to 1983 but continuing up to her departure to Australia and that the Sri Lankan authorities had done nothing about the threats and attacks on her.

HIS HONOUR: It is very sketchy though, is it not? It is unspecified dates and it does not indicate what endeavours the applicant made to get the Sri Lankan authorities to respond to the threats of extortion.

MR CHRISTIE: Perhaps it does not fully identify it but it does make the claim that she did seek, at least at earlier stages and provides certainly some considerable evidence of the initial approaches to the authorities. Certainly in later times she, perhaps, did not.

HIS HONOUR: But this is back in 1983. The application being made before me now relates to a well-founded fear in the year 2001 or 2000 in respect of which, as the delegate pointed out, no application was made until she had been in Australia for a year. Within that year she had, herself, sought the extension of her Sri Lankan visa and the application is made at the very last moment of the expiration of the one year that she spent on a visitor's visa. On the face of things, it does not really look the action of a person with a well-founded fear and that is a point the delegate made.

MR CHRISTIE: Yes, your Honour, that remains unexplained why she did not make that application beforehand, other than, of course, the situation in Sri Lanka that significantly worsened in the early months of 2000, particularly in April-May 2000, with the advance, I think it is really from March, April, May 2000, with the advances and military successes of the Tamil Tigers in the north of the country. There was a - - -

HIS HONOUR: I may have got it wrong, but my understanding is your client originated from Colombo. She then went north during the race riots of 1983 or shortly after those riots. She remained up there until her daughter's marriage, when she came back to Colombo, and basically she had remained in Colombo thereafter until, from time to time, she would leave for the Maldives Islands or for India or for Australia and perhaps New Zealand to visit her children. Now, is that a correct understanding, or not?

MR CHRISTIE: Yes, indeed it is, your Honour. One of the contentions she put forward was that the military successes of Tamil Tigers in the north would be to inflame the Sinhalese population and would encourage the criminals who had been threatening and extorting her to be more ruthless, if that is possible. So it was in that context that she was relying upon the worsening situation, rather than any adverse direct attack upon her by the Sri Lankan authorities.

Your Honour, perhaps I could refer you to what I see as the relevant passages in her application which support the application. Your Honour, hopefully, your affidavit - - -

HIS HONOUR: Just before you go to that, what is the point of your affidavit? Is that simply to deal with the fact that she has exhausted other efforts to remain in the country, or is there some other point to your affidavit?

MR CHRISTIE: No, purely for that purpose, purely from the discretionary point of view.

HIS HONOUR: This is to deal with the discretionary element, yes. The affidavit of Ms Moss is to deal with the failure to provide the oral interview which Ms Moss says is the common practice observed, in her experience, by the delegates?

MR CHRISTIE: That is correct, your Honour.

HIS HONOUR: Very well, that is the point of those two affidavits. You take me to what you want me to read in the affidavit of the applicant.

MR CHRISTIE: Yes, your Honour, if I could refer you to page 5. Hopefully your affidavit has been numbered, your Honour?

HIS HONOUR: Yes, they are numbered.

MR CHRISTIE: Yes. Your Honour, from pages 5 to 9 are the applicant's answers to the questions.

HIS HONOUR: Yes, I have read that. The section at the bottom of page 5 appears to be ruled out. Is that because it was marked with a highlighter, or is that deleted? You see the last sentence, "Therefore", down to "(see details in Question 37)". In my copy that appears to be marked through, but it may be a photocopy of a highlighted version of the document.

MR CHRISTIE: I believe that is the case. My copy, which appears to be a photocopy of the applicant's affidavit, has not been marked at all.

HIS HONOUR: Anyway, they are part of the words - the last sentence, are part of the document?

MR CHRISTIE: Indeed, your Honour, yes.

HIS HONOUR: The document - - -

MR RITTER: Sorry to interrupt, your Honour. Could I just clarify something because I am not sure that my copy is, therefore, complete. If I could just inquire whether the document at that page is meant to finish with the paragraph in brackets which concludes, "see details in Question 37"?

HIS HONOUR: That is what I have, yes.

MR RITTER: Yes, I am obliged to your Honour.

HIS HONOUR: But I do not know if yours is marked through, but mine has a marking through it, and experience teaches that that sometimes is highlighter photocopied.

MR RITTER: Yes.

HIS HONOUR: However, it is a fair comment I think, is it not, Mr Christie, that this is not the application of a person who has no access to some person who can write a pretty fair form? The form appears to be the action, if not of the applicant herself, at least of somebody who is quite articulate and apparently intelligent and able to put a sentence together. I am telling you that because that is an impression I got from it and I think it is fair, if you do not agree with it, that you have a chance to respond.

MR CHRISTIE: Your Honour, I cannot disagree with that.

HIS HONOUR: I say that because sometimes we see applications that are obviously written by people who are inarticulate, unable to express themselves in writing or who lack command of the English language, but none of those seem to be factors in this case.

MR CHRISTIE: No, your Honour, I have to accept that. It does not mean to say, of course, that the person who assisted the applicant would be fully aware of all the requirements or the difficult requirements to satisfy the requirement of being a refugee under the Act.

HIS HONOUR: Well, that is probably so. I would infer that this was probably put together with the applicant and her daughter and son-in-law, who I understand is a veterinarian, and that she had some assistance within her family to do it. That would be a perfectly natural thing.

MR CHRISTIE: And I accept that would undoubtedly be the case.

HIS HONOUR: Yes.

MR CHRISTIE: Your Honour, I refer in particular to about the last five or six lines of question 36 where it is stated:

I fear for the safety of all the tamils in the government controlled area, if these soldier perish in fighting.

She having referred earlier, as I indicated, to the military successes of the Tamil Tigers. She goes on:

There are already indications extremist sinhalese elements wanted to take revenge on the innocent tamil civilian in the south and in Colombo.

And she refers there to - - -

HIS HONOUR: Now, just pause there, if you would, because normally what we have in these cases, and because of the structure of the legislation this Court has had quite a lot of these cases, is some incident shortly before the applicant leaves which is a fearsome or nightmarish or frightening incident, and almost immediately afterwards leaving the country of nationality, but here there does not seem to be any such incident, and the last incident that is referred to is back in 1987, which is in the middle of page 6. There are 1983 incidents and 1987 incidents.

MR CHRISTIE: Yes. With respect, no, your Honour, they refer to incidents that occurred in 1997 and 1998. She refers to, at the bottom of page 6:

I had decided to leave Colombo on a permanent basis to Jaffna while I was mourning my husband's death.

I will have to check the application but I think he died in about 1997 and:

because a person involved in the 1983 riots.

So she is referring back to the 1983 riot, but she is referring to an event that occurred in 1997 also:

walked into my house and demanded money knowing I was alone and no other family member were living in Colombo at that time. He threatened to kill me if I report the - - -

HIS HONOUR: Where are you reading, now? Where are you reading?

MR CHRISTIE: I went to page 6, your Honour, because I understood that is what you were concerned that the incident that she was referring to was back in 87 or so but in fact that - - -

HIS HONOUR: It is all very vague, Mr Christie. It is very vague by comparison to other cases. I am not saying that that is fatal but it is very indefinite and I imagine this is possibly what struck the delegate. I mean, you are correct to say that she goes at the bottom of the page and says:

When I returned back from Maldives I was threatened by the same person and I had to go back to Maldives within a week of my arrival in Colombo. Since then I have been travelling . . . to avoid thugs tracing me and intimidating my life.

But, it is not very elaborated and not very definite, really.

MR CHRISTIE: No, your Honour, that may be so but the delegate accepted, on the face of it, that those accounts occurred.

HIS HONOUR: Yes, I saw that.

MR CHRISTIE: If I could perhaps just, turning to the delegate's decision, take you again to page 9 where she says on the second line:

I have a specific personal experience that authorities in he past failed to give protection for our life and property -

and she says:

(see attached documents).

Which I think refers to the complaint made following the 1983 riots. She goes on to say in the middle of that page:

the events in the past six months suggests the security in Sri Lanka is getting worse. Therefore, I earnestly feel that authorities in Sri Lanka will not be able to protect me because they have to commit their energy and resources to enhance the government hold of the Jaffna peninsula. But even if they express willingness to protect me that will not materialise in action as I am a member of the tamil community and all of whom are suspected as ltte members by authorities.

HIS HONOUR: Is the logic of this that every member of the Tamil community of Sri Lanka who arrives in Australia on a visitors visa can stay for a year and then say, "I am entitled to stay as a refugee"? That does not seem a very likely operation of the Act. It has to be a well-founded fear of persecution for a Convention ground.

MR CHRISTIE: I accept that, your Honour. Leaving aside the delay in applying, and I appreciate your concerns in relation to that, but leaving that aside, what she is saying is that, "I have been attacked over many years - 16 years. In recent times since my father's death I have been threatened and money has been extorted from me, I have had to leave the country, leave my home - by Sinhalese members of the community who are known to me. I have complained to the police in the past about it. They have done nothing. These men have threatened me and that the attitude of the Sri Lankan Government is not to assist Tamils in this situation". Now, that is, in effect, what she is saying.

The way that the delegate dealt with it, if I can now turn to that, appears, your Honour, at pages 15, 16 and 17. Just very briefly at page 15 in the second-last paragraph on that page the delegate says:

Having consider the detailed statement of the applicant, in the light of available country information, I accept her claims at face value. The applicant has outlined in detail incidents which have affected her and her family particularly since 1983. The claims of the applicant concerning her fear of return to Sri Lanka however, are very general in nature, such as "I strongly feel the turn of political and military events in Sri Lanka in the recent past would enhance the hands of criminal elements who will mistreat ordinary tamil citizen like me in Colombo."

I appreciate that as a general statement but if it is read in context with what she had said, basically what she had said was that she was being specifically threatened and extorted by specific people and that she feared that the government would not protect her.

Turning to page 16 the delegate, in effect, makes - he notes a number of points, but, in effect, they are findings and really they are not disputed. In the third paragraph down, he says:

Whilst the applicant is Tamil, she would have a low profile and no known connections to the LTTE or anyone of interest to the Sri Lankan authorities.

Well, it was never contended otherwise.

HIS HONOUR: Somewhere in the delegate's reasons is an acknowledgment that the Tamil people, as at the country reports that he had, are certainly the subject of more surveillance and are much more likely to be stopped in road blocks and the like. That appears to be the country report information at that time that the delegate made his decision.

MR CHRISTIE: Indeed, your Honour, and there is evidence of torture against Tamils who were taken in for questioning. But in summary, the point that he made is that she was of low profile. As I say, that was not disputed or even raised by her. He indicates that if she were to be detained, she has no particular connections to anyone which would make her of concern to authorities. Again, that was not an issue. He noted that she had been free to travel in and out of Sri Lanka. He noted, which I accept goes to her credibility, but he did, after all, accept her credibility, so it is not, in my submission, as important as one might otherwise contend, that she had not made an application for 12 months. If he disputed her credibility, that would be a very significant point but there does not appear to be any issue about her credibility.

HIS HONOUR: But I took the delegate to be referring to these matters as indications that far from being a person under a cloud of fear, the applicant was continuing to move in and out of Sri Lanka to other countries where presumably she could make an application if she had a well-founded fear, but instead she just moved backwards and forwards and even went to the point of renewing her passport. I have never heard of that before in any of these cases that somebody who has a well-founded fear of a country of nationality renews the passport in that country and just keeps on living under a visitor's visa in the country of refuge.

I have read an awful lot of these cases now in the course of this Court's work and I have never seen anything like that. It seems to be a relaxed attitude towards her country of nationality, and I think that is the point the delegate was making, that it is not compatible with a well-founded fear.

MR CHRISTIE: The point that the delegate made and the conclusion he reached, your Honour, is, of course, the second paragraph on page 17. He says:

In view of all the above, I am unable to conclude that the applicant is of adverse interest to the authorities.

We would accept that that is the case. She has not been singled out by the authorities but that really was never her case. Her case is that of a sense of indirect persecution, that she was being persecuted by certain Sinhalese who she was able to identify and that because she was Tamil, she feared that she would not be afforded protection from that by the authorities. Now, that is not a direct fear of the authorities and, in my submission, that is not inconsistent with her maintaining her passport and certainly not inconsistent with her travelling to the Maldives or to India, which she says she did to escape from the Sinhalese gangs.

Now, she says in her affidavit, but she does not elaborate on it, she says in her affidavit in the final paragraph that she was unable to remain in the Maldives. She was unable to obtain a visa to stay there so, in a sense, on the face of her evidence she was forced to return to Sri Lanka but she is intending to move in order to escape, not from the authorities, but from the Sinhalese gangs. Now, the way that the delegate dealt with that is, of course, in the next paragraph on page 17 where he simply says:

I note that the applicant has expressed a fear of "criminal element who will mistreat ordinary tamil citizen like me in Colombo". The behaviour feared by the applicant in those circumstances amounts to extortion rather than persecution for a Convention based reason.

In my submission, the delegate has simply failed to address one of the essential elements, namely, that the persecution does not have to be directly by the Sinhalese authorities. Persecution by Sinhalese citizens which is acquiesced and where protection is not provided for by the authorities can amount to persecution and, your Honour, there are a number of authorities which I can take you to for that proposition.

HIS HONOUR: What is the best of them? Is this to support the contention that a failure to take into account a relevant matter can amount, in an appropriate case, to an error of jurisdiction? Is that what you are - or is it something more specific?

MR CHRISTIE: Your Honour, I was dealing first with the issue as to whether the failure of protection by the Sinhalese authorities could amount to persecution.

HIS HONOUR: I do not think I need your assistance on that, but one question that does arise, and it is really signalled in the second-last paragraph of the delegate's decision, is whether fear based on threatened extortion is fear for a Convention ground. Now, I realise fully that you say it is not just for extortion but it is extortion plus and unwillingness or inability to protect your client, but it is a matter of characterising the source of her fear. Is it because of thugs or is it because of thugs and an inability or unwillingness of the government to protect her?

MR CHRISTIE: Your Honour, in my submission, she stated that it was a combination of both and that the delegate simply did not address the second part of that question. He looked to see simply whether she was of adverse interest to the Sri Lankan authority and then he dismissed the substance of her refrain by describing it as extortion. There is no indication in this decision that he in any way rejected her contention that there was a failure to provide protection. In my submission, the failure to address that essential issue is the fundamental question which amounts to a jurisdictional error in this matter.

HIS HONOUR: Yes.

MR CHRISTIE: Your Honour, in that regard, perhaps the most appropriate authority to refer your Honour to is the High Court's decision in Abebe and, in particular, the joint judgments of the Chief Justice and Justice McHugh paragraph 59, which is to be found at page 537 of the Commonwealth Law Reports. Your Honour, that, of course, is in a somewhat different context, but as you recall, the contention by the applicant was that she had been raped by government officials, whilst held in custody for reasons of her political affiliation and racial background.

If I could refer you to halfway down that paragraph, what their Honour said was:

If the Tribunal should have examined, but did not examine, that issue, it is not open to argument that the Tribunal fell into jurisdictional error, error which would attract this Court's jurisdiction under section 75(v).

But their Honours disposed of the matter or agreed with the Tribunal's approach that it did not need to deal with that question, because it had found against the applicant on the fundamental premise that she had been taken into detention at all and if she had not been taken into detention she could hardly have been raped by the officials whilst in detention.

HIS HONOUR: But is there not a similar fundamental problem in this case as to whether your client had the requisite fear, given the somewhat relaxed way in which she pursued her claim that she was suffering from this fear? That is something that the delegate certainly referred to. I am not suggesting that everybody who comes into Australia and wants to claim a protection visa has to rush off to the immigration official at the barrier and make the assertion, but to leave it until the last two or three days of a visitor's visa does have the ring about it that this is really, on the face of things, a family reunion rather than a person who is suffering fear of persecution. Is that an incorrect impression? The delegate obviously felt that way and I must tell you that that is how I am a bit inclined to look at the facts of the case.

MR CHRISTIE: Your Honour, with respect, in my view you cannot read that into the delegate's decision. I see nothing in the delegate's decision where he disputes that she had a fear of persecution. He accepts her claims at face value. Well, those claims included a claim of fear. The decisions he reached were that she was not of adverse interest to the authorities, which, as we say, were hardly to the point, and that her fear in relation to the extortion and threats were simply a criminal matter, not a convention reason, not persecution for a Convention reason. If he had found that he did not believe her and that she did not have a fear, I would agree with your Honour's views that we would be left perhaps with the breach of natural justice question, but he does not make that finding. There is no indication, unlike your Honour's views, that he ever concluded that. He appears to accept her statements but dismisses - - -

HIS HONOUR: I am referring to the second-last paragraph on page 16 where he says:

I note that the applicant arrived in Australia on 7th May 1999 but did not seek protection until two days before her last visa was due to expire on 5th May 2000. This behaviour is generally inconsistent with that of people with a genuine fear of persecution on return to their country of origin.

That is at a point where he has finished reviewing the facts and background of the case and he is getting to the fundamental bases upon which he is rejecting your client's application.

MR CHRISTIE: But he does not seem to reach any conclusion from that that she did not have a fear. He does not state that.

HIS HONOUR: He says that it is "inconsistent with that of people with a genuine fear of persecution". He says it in terms.

MR CHRISTIE: Your Honour, all I can say is that that needs to be read in context also with his previous statement that he accepted her claim, which is, of course, found at page 15 in the second-last paragraph.

HIS HONOUR: Yes. I have read that.

MR CHRISTIE: In my submission, they are inconsistent. Your Honour, I do not think I can assist you further in relation to the jurisdictional error relating to a failure, as we would submit, to address the question of the lack of protection in relation to the extortion claim by her and, in my submission, accepted by the delegate, other than, I would say, your Honour, that once you accept that she did suffer from continuing threats of extortion, it would perhaps be inconsistent to find that she did not have a fear.

Turning now, your Honour, to the question of breach of natural justice. It is accepted that under section 54 there is no legal automatic provision or right to attend an interview. However, it is submitted in the circumstances of a case such as this, particularly, your Honour, and perhaps this only arises if the delegate, in fact, found contrary to the applicant's claims, that if that statement that you have relied on, your Honour, is to the effect that he does not accept that she had a genuine fear, in my submission, that would be an additional reason, in addition to the matters I have referred to in my written submissions, that emboldened him to meet this lady face to face, to explore her claims, which obviously could have been given in more detail, and to satisfy himself whether or not she did have a fear and, indeed, the basis for her claims under the Convention.

In my submission, it would appear more likely that the delegate felt that he could simply deal with these on the papers, because he was mistaken as to the effect of her claims in relation to the extortion and threats made against her, and he thought that these simply could be dismissed as being for a non-Convention reason, and that that error is tied up with his error in not affording her an interview, or at least alerting her to the fact that, contrary to the normal procedure in these matters, that there would not be an interview, and he would deal with the matter simply on the information he already had.

Your Honour, in my submission, that might well be appropriate in some matters, particularly in non-refugee matters, quite possibly in matters where claims are made which are manifestly ill-founded, or from countries where there is no reason to believe that there are substantial human rights abuses, which is quite clearly known to the delegate in relation to Sri Lanka.

For all of those reasons the Tribunal - not the Tribunal, the delegate in this particular case, in order to properly deal with the matter and provide a fair procedure to the applicant, was required to have a hearing or at least alert her that he intended to deal with the matter without an interview.

HIS HONOUR: Your slip is really the source of the problem; you call it the Tribunal, but it is the delegate, and the delegate is simply standing in the shoes of the Minister and is an administrator, and most administrators make decisions without hearings. Admittedly, in this case there is evidence now before me that it is normal to get people in for an interview, but the Act does appear to contemplate that the matter can proceed without an opportunity for oral presentation, and any rule of natural justice that would be fashioned by the Court would have to be consistent with that provision in the Act. You could not articulate a principle of natural justice which was incompatible with the scheme of the Act.

MR CHRISTIE: I fully accept that, your Honour, and, of course, in relation to the Tribunal, this specific provision for a hearing, a hearing must occur unless there is to be a decision favourable to an applicant. That is quite clearly not the position in relation to a delegate's decision.

HIS HONOUR: The basic problem that arose here was the mistake that led to your client's not initiating the application for review before the Tribunal. Had she done that, she would have had a full and handsome opportunity to express the matters that she would put forward in much greater detail than in her application to the delegate. But the scheme of the Act seems to be that Parliament contemplated that ordinarily the delegate would proceed or could proceed without a hearing and then if the person is rejected and is still dissatisfied, they can get their hearing before the Tribunal. That seems to be the scheme.

MR CHRISTIE: Yes. Your Honour, of course the scheme applies to all types of visa applications.

HIS HONOUR: That is true. Does the Tribunal have to have a hearing - is that under the Act - or can the Tribunal proceed just on the papers?

MR CHRISTIE: The Tribunal could only proceed with a decision favourable to the applicant on the papers.

HIS HONOUR: I follow. What is that section, do you know? Perhaps Mr Ritter will be able to help with that.

MR CHRISTIE: Your Honour, I think it is section 425.

HIS HONOUR: I see, yes.

MR CHRISTIE: So, your Honour, I certainly concede that there is no right of an interview. It is only in the circumstances of this particular application in the background of the standard procedure of the Department to have interviews that we would submit that in the circumstances of this application for a fair and efficient decision that there should have been an interview.

HIS HONOUR: Is your client in immigration detention or is she with her daughter?

MR CHRISTIE: She is in the community, your Honour, with her daughter.

HIS HONOUR: Yes.

MR CHRISTIE: She is currently in receipt of a bridging visa.

HIS HONOUR: I am sorry. I did not hear that.

MR CHRISTIE: She currently has a bridging visa which enables her to remain in the community.

HIS HONOUR: Yes, I understand the visa situation and she says in her statement that if she were allowed to stay in Australia she would be no burden on the community because of her dependence on her daughter and whilst that may be relevant to lay people's assessment of these sorts of matters, it does not really seem to be relevant to a question of whether a person is a refugee. If they are a refugee then they are entitled to the protection obligations that Australia has accepted under the Convention and incorporated under the Act.

MR CHRISTIE: Indeed, your Honour.

HIS HONOUR: Is there anything else?

MR CHRISTIE: Your Honour, the only other matter concerns the question of the requested remedies being discretionary. Your Honour, in that regard it is accepted that a mistake was made by the applicant or at least her son-in-law in understanding - - -

HIS HONOUR: I do not want to hear you on that. Subject to hearing what Mr Ritter has to say, that would not be a factor in my considerations. By the defaults that are cured every day in courts of law, this was a very small default and I think I have said in a recent case that it is a pity that the Minister does not have a power or that the delegate does not have a power. The Minister does have a power to permit a second application to be made, which was refused in this case, but if every court of law operated on the inflexible timetable of delegates that have come before me, well you would have a lot of lawyers on the wrong end of negligence suits.

MR CHRISTIE: Particularly when decisions are deemed to be received in the ordinary - not necessarily in the ordinary course of post but they are deemed to be received when, in fact, this one was only received a few days before the actual time limit expired. Thank you, your Honour.

HIS HONOUR: Yes, thank you, Mr Christie. Yes, Mr Ritter?

MR RITTER: May if please your Honour, would it be of assistance if your Honour had the opportunity to read my submissions before I commence orally?

HIS HONOUR: Yes, I might do that. That might be saving of time.

MR RITTER: Before your Honour does that could I, firstly, apologise for the fact that they did come in late, and, secondly, point out two corrections. One is the reference to the applicant as the prosecutor throughout, and I apologise for that.

HIS HONOUR: That does not matter.

MR RITTER: Secondly, in paragraph 56 there is a typographical error.

HIS HONOUR: Yes.

MR RITTER: In the second-last line the word "not", it should read, "there may be a jurisdictional error" not "there may not be a jurisdictional error".

HIS HONOUR: Yes.

MR RITTER: If the word "not" could come out of the written submissions.

HIS HONOUR: Just a matter on the facts, Ms Moss has deposed in her affidavit, which has been received without objection, that it is the normal practice of the delegate in her experience to provide an interview for an applicant and, indeed, I think she says she only knows one case where that was not done. You have now filed evidence in the matter on behalf of the Minister and the content of Ms Moss' affidavit is not dealt with in any way. It is not contradicted. Would I not have to infer that what Ms Moss says is accurate?

MR RITTER: I am in a difficult position, your Honour, because I have instructions contrary to the affidavit.

HIS HONOUR: Yes, but if you do not put the evidence before the Court, would not the Court infer from the absence of relevant evidence and from the fact that you filed evidence from somebody who has access to the departmental information and who does not trouble to answer what Ms Moss says, that what Ms Moss says is correct?

MR RITTER: The difficulty I have with that is it is a matter that I specifically discussed in light of the - - -

HIS HONOUR: Well, you may have, but courts of law in this country act on evidence, not on what is said from the Bar table.

MR RITTER: Yes, that is why I am in a difficult position. If that was considered by your Honour to be a crucial factual issue, then I would have to seek an adjournment to get some instructions on the filing of a subsequent affidavit, because the instructions that I received last night were that the affidavit was already completed and it was considered, therefore, by my instructor too late to put additional information into this affidavit.

HIS HONOUR: Yes.

MR RITTER: Now, that does create a factual vacuum which, if, therefore, that causes a problem for your Honour, we would have to seek an adjournment for me to take instructions.

HIS HONOUR: It may not be a problem for me. It may be a problem for you. It is no problem for me. Nothing is a problem for me. Nothing is too much trouble for the Justices of the High Court of Australia.

MR RITTER: Yes. Perhaps I could - - -

HIS HONOUR: I am sitting here at the end of the day which, as you know because you were there, has been a long day, hearing this matter because of legislation that has been enacted by the Parliament that forces this Court to deal with these matters. In my view, which I have expressed in decisions, we should not be in that position, but we are, so I just deal with it. You have to take your own course. It is not for me to give you advice on these matters.

MR RITTER: No, I understand that.

HIS HONOUR: I am just calling to your notice the fact that Ms Moss has said this and Mr Corbould has not dealt with it.

MR RITTER: Yes.

HIS HONOUR: I will take time to read your written submissions and you can just take some instructions and by the time we have both finished, we will both have reached some sort of conclusion.

MR RITTER: My problem, your Honour, is that my instructor is in Perth and I think that the person that was here from the department may no longer be here. Could I suggest respectfully, your Honour, that we take a short adjournment allowing your Honour to read it - - -

HIS HONOUR: Very well, I will go off the Bench, I will read the written submissions and then I will come back and we can decide what happens. But if it goes over, it will go over for some time.

MR RITTER: Yes.

HIS HONOUR: Court will adjourn for 10 minutes.

AT 5.32 PM SHORT ADJOURNMENT

UPON RESUMING AT 5.57 PM:

HIS HONOUR: Yes, Mr Ritter.

MR RITTER: May it please, your Honour. Thank you for that opportunity. My instructions are not to seek the adjournment that I foreshadowed that I might need to apply for.

HIS HONOUR: Yes, very well. What do you say? I have read the written submissions that you have filed.

MR RITTER: Yes, I am obliged to your Honour. Could I make some comments about the evidence briefly in relation to this matter. If I could firstly take you to aspects of the annexures of the affidavit of Mr Corbould.

HIS HONOUR: Yes.

MR RITTER: Your Honour will see at page 4 and following parts of the application for the protection visa of the applicant which are not included in the applicant's affidavit, so that is additional information.

HIS HONOUR: Yes, I noticed those earlier.

MR RITTER: There is also another attachment that is relevant, which is PJC2.

HIS HONOUR: What page is that?

MR RITTER: Page 48, I think it commences.

HIS HONOUR: Is it paginated?

MR RITTER: Yes, it is paginated in the bottom right corner on mine.

HIS HONOUR: I see. What page is it?

MR RITTER: Page 48.

HIS HONOUR: Page 48.

MR RITTER: Yes. Your Honour will see that that is headed "A How to apply for a Protection (Class XA) visa". This is attached or provided to applicants for protection visas and, therefore, it provides information to people who are to apply for protection visas. If I could start with some relevant aspects of that document.

Your Honour will see in the second column which has at the top of it the bold heading, "Protection visa". At the bottom it says, "Your claims" as a heading. And, it says:

You must complete and include Part C of the application - Application for an applicant who wishes to submit their own claims to be a refugee (unless you are in immigration detention, see information at page 3).

Just stopping there, that does not apply to this particular applicant.

HIS HONOUR: No.

MR RITTER: There is then on the third column three paragraphs down on the same page the paragraph:

You should answer all these questions in your own words and tell DIMA everything about why you think you are a refugee. You may answer these questions on he application form or submit a separate statement with your application.

There is then importantly and in bold three paragraphs down:

Please note that you will be requested to attend an interview only if the case officer decides it is necessary.

Then over the page on page 49 in the first column - - -

HIS HONOUR: How do we know that the applicant received this form?

MR RITTER: If we can go to the affidavit of Mr Corbauld - I am sorry, your Honour, that is Part A of the form, so that Part A of the protection visa form provides these directions, so it is actually a part of the form of which Parts B and C commence - - -

HIS HONOUR: Earlier in the affidavit, I thought.

MR RITTER: Earlier in the affidavit. So that is the way in which an applicant is seized of this information and the Minister, therefore, tries to make sure an applicant is aware of this information. Your Honour, I am taking you to page 49 on the column on the left in the paragraph under the heading, "About the information you give". To summarise, that gives information as to what will be done, effectively, with information provided by a visa applicant. That theme is continued in the paragraph of that column which is above the heading, "Getting help to prepare your application" where it says above that:

DIMA is careful to protect the privacy of applicants. Care will be taken to make sure that details of your application do not reach your home country.

If you provide false or misleading information, you are subject to penalties under the Migration Act 1958 .

Now, I take your Honour to these types of paragraphs of this document for the purpose of the submission of saying that it was brought to the applicant's attention that if she provided - two things: one, that she ought to provide full and complete information and, secondly, if she did, it would have been dealt with confidentially and sensitively.

The next matter I will bring to your Honour's attention, although not read, is to mention the paragraph that follows under the heading "Getting help to prepare your application" and the use of migration agents in connection with that. In the next column your Honour will see a heading "Other forms of help" and it deals with the situation of a visa applicant who does not have a good command of the English language.

HIS HONOUR: That does not appear to apply here.

MR RITTER: No, but again, it is for the purpose of directing people's attention to what they can do if they have some difficulty in completing the form.

HIS HONOUR: Yes.

MR RITTER: Under the heading in the same column "Step 2" it says:

Carefully read this part and other parts of the application form before you start to fill them in. There is much detailed information you have to give on the application form, and you have to supply many supporting documents.

If you do not have the required documents or information, you should take immediate steps to obtain them to include in your application.

HIS HONOUR: You say in your written submissions that the form was filled in, or at least the typed sections were filled in, by the son-in-law of the applicant. How do you know that?

MR RITTER: That is taken from the affidavit of the applicant. We are accepting that at face value.

HIS HONOUR: Yes, well, it would have been an inference I would have been inclined to draw anyway, but it might have been the applicant's daughter or certainly a family member.

MR RITTER: Yes. As your Honour observed, and we would endorse this, the expression in the typewritten answers that one has shows, with respect, a good command of the English language and a level of intelligence, if I might use that expression.

HIS HONOUR: Yes. That may, of course, relate to the son-in-law rather than the applicant but, however, she had that available to her presumably.

MR RITTER: Yes. In the third column on that same page there is an aspect which says:

You may also provide any additional documents which are relevant to your application.

And then further down, in two paragraphs above the heading "Step 3":

If you do not provide documents to support your application, a decision could be made without them.

HIS HONOUR: Where is that?

MR RITTER: If your Honour sees the heading "Step 3".

HIS HONOUR: Yes.

MR RITTER: Two paragraphs above that.

HIS HONOUR: I follow, yes.

MR RITTER: Then, under the heading "Step 3", three paragraphs down, it says:

Include all the information requested. If you need more space, attach a sheet of paper giving the required information. You should give the part (Part B etc.) and the question number to which the information refers, and sign each additional sheet.

Remember to answer all questions. Failure to answer all questions may result in your application being invalid.

Just pausing there, the structure of the applicant's answers is to put question numbers on each page and to have her sign each page.

HIS HONOUR: Yes.

MR RITTER: Going over to page 50, it refers to - under the heading "Acknowledgment" in the first column:

When we receive your application we will send you an acknowledgment. The letter acknowledging receipt of your application will give details of the phone number and address which you may use if you need to contact DIMA.

Please note: If you contact DIMA by phone, only limited information about your application can be given so that we can make sure your private details are not given to others.

Your application will be processed as quickly as possible and you will be told the decision in writing.

If I could move to another document at this point, because it becomes immediately relevant, and that is PJC3, which appears at page 53 and following, which is the letter which was sent consistent with that part of the application form. Again, it says, in the second-last paragraph on that page:

In considering your application, an officer of the Department may contact you to arrange an interview or to seek further information, if this is needed.

Again, we say that is consistent with the Immigration Act 1958 , and consistent with the information in the application form.

HIS HONOUR: Where is that? I am sorry, I can not find that.

MR RITTER: It is the letter which commences - - -

HIS HONOUR: I have page 53. Whereabouts is that?

MR RITTER: Second-last paragraph.

HIS HONOUR: I see, yes.

MR RITTER: If your Honour could also note the address of . . . , which is the address that appears in the application for the protection visa and I will take your Honour to that in another moment.

HIS HONOUR: Perhaps, that address should not appear in the transcript. I will direct that the address be deleted from the record, given that we are identifying the applicant by her initials only, I think it is undesirable that her address should appear on the record. These things are put on the Internet and they are available all around the world.

MR RITTER: I do not have a difficulty with that at all, your Honour. On the second page of that letter whilst we are dealing with it, your Honour, there is reference to section 55(2) of the Act and the fact that the Minister is not required to delay making a decision, and there is also relevantly in the next paragraph reference to the address, again, of the applicant as being recorded as the place to which correspondence relating to the application will be sent and also informing the applicant of a requirement to advise the department of a change of address if there be one.

Your Honour, if I could back then to page 50 and the information. The next column on that page "residential address and communication with applicant," that paragraph, the first paragraph there reflects what is contained in that letter which was sent to the applicant as well. Again, two paragraphs down from that there is reference to form 922, change of address, if that needs to be done by an applicant.

At the bottom of that column, your Honour, there is a heading, "additional information," and advice to a visa applicant that if they have new information

they should send it to DIMA as soon as possible so it can be considered with your application.

Then in the right-hand column there is advice to visa applicants at the top of the page on not giving incorrect answers and correcting them if the answers are incorrect. Then, relevantly, there is another heading dealing with interviews and requests for more information where it says:

We will advise you in writing if you are required to attend an interview. We will also advise you in writing if we want you to provide more documents or information.

Your Honour, attached then as part of that document is an application checklist.

HIS HONOUR: Yes, I saw that.

MR RITTER: Your Honour, there are specific parts of that which I would draw to your Honour's attention perhaps without reading them. If your Honour sees the second heading on the left column, that heading reads:

For applicants not in immigration detention.

So that obviously provides to this applicant. We would submit that the second circle point and the fifth circle point and the eighth circle point are relevant to this particular application before the Court.

HIS HONOUR: Yes, very well.

MR RITTER: And then, on the right hand side:

If you are a single applicant -

it says there and then - - -

HIS HONOUR: Yes, I have seen all that; I do not think that helps me very much.

MR RITTER: Yes.

HIS HONOUR: Coming to the case which has been presented for the applicant, I do not need your assistance on the issue of natural justice, but what do you say about the suggested failure to have regard to the statutory criteria and, in particular, to have regard to the suggested foundation of the applicant's case, namely that she was not only a victim of thugs and thus of extortion, but that she could not look to the authorities in Sri Lanka to provide her with protection, and that that is the basis of fear?

MR RITTER: Could I answer that in this way, and say, firstly, with reference to Abebe's Case that my learned friend relies on, their Honours in that case refer to the failure to consider an issue as being productive potentially of jurisdictional error. We say that this case does not involve the failure to consider an issue. What the applicant, properly understood, complains about is the factual resolution of that issue.

HIS HONOUR: Your could get a failure to consider a fact which is central to an issue though which, in effect, indicates a failure to consider an issue. You see, as I understand Mr Christie's submission, it is that the delegate looked on the applicant's case as if it were simply an application based on the fact that she was afraid of thugs, whereas he did not look - is the delegate a male or female, do you know?

MR RITTER: I understand it is a female.

HIS HONOUR: A female, and she did not look to the fact that the real essence of the complaint, and thus the issue, was that it was the combined force of the fear of the thugs and the fact that the police, so it was suggested, do not look after people who are Tamils.

MR RITTER: Yes. Could I answer that in this way, by firstly saying in looking at the reasons of the delegate, the principles that the Court enunciated in Wu Shan Liang are obviously relevant, even though it is not cited in our list of authorities, that one should not look at the language of the reasons of the delegate with an eye keenly attuned to the perception of error. The decision is meant to inform.

Secondly, could I say that the - and this is reflected, I think, in our written submissions in paragraph 55 which reflects my submission properly, the process of the delegate in looking at the matter and the delegate, firstly, correctly identified the criterion under clause 866.221 of the Migration Regulations and, secondly, referred to the definition of "refugee" in the United Nations Refugees Convention; thirdly, said that she accepted the claims of the prosecutor at face value; fourthly, noted the prosecutor expressed a fear of criminal elements who would mistreat ordinary Tamil citizens like her in Colombo and said the behaviour feared by the applicant in those circumstances amounts to extortion rather than persecution for a convention-based reason; fifthly, made a finding of fact that the prosecutor's claimed fear of persecution on return to Sri Lanka was not well founded and then, sixthly, and finally, was not satisfied that the prosecutor was a person to whom Australia has protection obligations under the Refugees Convention.

Now, to come back more specifically - - -

HIS HONOUR: Yes, go on.

MR RITTER: Sorry. To come back more specifically to your Honour's question, we would say in summary that the delegate has identified the correct question, has taken into account in a factual sense the claimed difficulties with criminal thugs and has answered that question as a matter of fact and law and said that as a matter of fact they do not find that she has a well-founded fear of persecution and that this is a case, therefore, different from Abebe. It is not a case where the delegate failed to address an issue. It is a case where, properly understood, the applicant does not like the answer to the question. It is a bit like Cohen's Case, which we cite in our submissions and list of authorities, which was recently decided, I think only late last week by his Honour Justice McHugh, where it is not the fact that a wrong question was asked. It is the answer that the applicant does not like.

In that context, could I refer the Court to another authority which I should bring to your Honour's attention which arrived to me in a bundle at lunchtime and I did not have the chance to look at it before much earlier than now and that is why I bring it to your Honour's attention at this late stage. That is a decision of the Federal Court of Australia, the Full Court in Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111. If I could direct your Honour's attention - - -

HIS HONOUR: Do I have a copy of this?

MR RITTER: No, your Honour, I apologise for that.

HIS HONOUR: Yes.

MR RITTER: It is at paragraphs 46 to 50. The court considers the question -it is a Full Court - considers the question of whether extortion had been properly considered by the Tribunal, as opposed to the delegate. If I can just read one very short passage because it deals with the issue that I want to present to your Honour from this case and that is at paragraph 46 where the court says:

As this Court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason -

Now, the reason why I emphasise that passage of the judgment is that I would submit that properly understood a claim of whether extortion is or is not for a Convention reason or relates to a well-founded fear for a Convention reason is a question of fact and that that decision, admittedly not binding on your Honour, seems to support that view and we say that properly understood this is what the delegate has done here. The delegate has not failed to consider an issue.

If I could take your Honour specifically to the paragraph in question, and, again, of course, bearing in mind that it is, as I have said, an administrative decision and reasons for administrative decision with those sorts of caveats that one applies to the review of those types of decisions. What the delegate says at page 17 is:

I note that the applicant has expressed a fear of "criminal elements who will mistreat ordinary tamil citizens like me in Colombo". The behaviour feared by the applicant in those circumstances amounts to extortion rather than persecution for a Convention based reason.

So that the delegate has considered the factual elements of the behaviour and given those factual elements a factual characterisation and decided that that factual information, properly so characterised, does not amount to persecution for a Convention reason.

There is no suggestion there of the asking of a wrong question, and we say there is no suggestion there of a failure to take into account relevant facts. Stopping at that point, your Honour, the particulars pleaded in support of this ground to show cause do not put it on the basis that there was a failure to take into account a relevant consideration, or a failure to take into account relevant facts. But if that were to be considered by the Court, the distinction between the failure to take into account a relevant fact and a failure to take into account a relevant consideration, we submit, would be significant. Because if there is a failure to take into account a relevant consideration, that may be productive of jurisdictional error, but if there is simply a failure to take into account a relevant fact, it is a matter that may be somewhat a different category.

But we say that that argument, if it were to be raised by the applicant, does not get, with respect, to first base, because the delegate clearly and expressly took into account the relevant fact. So that we say, for those reasons, in addition to the others in our written submissions, that there is not a jurisdictional error of the type complained of. We would invite your Honour to consider Cohen's decision by Justice McHugh in that light, as establishing similar propositions in addition to those that we cite to your Honour.

HIS HONOUR: Yes.

MR RITTER: Unless your Honour has anything further, they are our submissions in addition to the written submissions.

HIS HONOUR: Thank you very much. What do you say in reply, Mr Christie?

MR CHRISTIE: Thank you, your Honour. If I could refer your Honour to my learned friend's written submissions at page 9, paragraph 55(e). The contention by my learned friend is that there has been:

a finding of fact that the prosecutor's claimed fear of persecution on return to Sri Lanka was not well founded -

In fact, the finding which is on page 17 was:

that the applicant does not have a well founded fear of persecution for a Convention ground -

That, of course, is the whole issue, that at no time did the delegate make any finding or mention of the issue of the failure of the Sri Lankan authorities to provide protection. That is the failure to take into account the relevant considerations.

HIS HONOUR: He did not give consideration to that particular fact, or at least he did not express it, though he mentioned it in the same context, but the suggested test is not one of an omission to deal with a particular fact, because that is really reducing administrative decision-makers to the kind of scrutiny that is imposed on judges. It is a question of whether the delegate failed to take into account relevant considerations, which is a broader focus. The suggestion is that in the context of the mention of the extortion, of the mention of the fear about the position in Sri Lanka, that that is enough to indicate that the delegate took into account the relevant consideration.

MR CHRISTIE: Being, your Honour, the failure to provide protection by the Sri Lankan authorities in relation to the accepted extortion but which was dismissed because it was, in the delegate's words, simply extortion rather than persecution for a Convention reason. Your Honour, I do not think I can take it any further. That I see as the key issue. It is that failure to have any regard to the element of protection or the failure of protection by the Sri Lankan authorities and the reason for the extortion.

If I may refer your Honour to a passage - it is not on my list of authorities - that your Honour referred to in the case of Chen Shi Hai on the question of causation. You referred to a passage from, I think, Lord Hoffmann in Shah's Case in Nazi Germany of the rival shopkeeper who beat up his Jewish counterpart and the issue was there and the atmosphere of that time and the encouragement or acquiescence of the German authorities with that activity amount to persecution for a Convention reason. Lord Hoffmann said it was and, in my submission, he was right in that view.

It is a question of causation: has this applicant been subjected to extortion and threats by the Sinhalese citizen, because she is a Tamil, and have the Sri Lankan authorities failed to provide her with protection. In my submission, that issue was simply not addressed by the delegate, because he looked at the issue purely from the point of view of extortion rather than failure of protection. I do not think I can take it any further, your Honour.

HIS HONOUR: Yes. This is a question for Mr Ritter. Thank you very much, Mr Christie. Do I take it from what Justice McHugh says in Cohen that whereas the issue of natural justice cannot be remitted to the Federal Court, the issue of jurisdictional error can be, is that correct? I am referring to what his Honour says at paragraph 40 of Cohen. He says:

In light of the conclusion which I have reached regarding jurisdictional error, it is unnecessary to consider whether, in all the circumstances, the application should be remitted to the Federal Court.

MR RITTER: Yes.

HIS HONOUR: So that implies that had he come to a different view on the question of jurisdictional error there would be power notwithstanding section 476 to remit matters to the Federal Court. Is that correct or not?

MR RITTER: I would construe that passage of his Honour's judgment differently, that his Honour did not need to consider whether or not he could or should remit, because the consideration of the matter did not get to first base, because there was no - - -

HIS HONOUR: But he would not be considering it if there was no jurisdiction. I notice a couple of lines down he says:

(so long as it has jurisdiction to hear it).

MR RITTER: Yes. Do you want me to hear me on the remitter point?

HIS HONOUR: I do not think so, no, thank you. Is it convenient to the Court staff to wait on for a little while whilst I deal with this matter now or do you have to get away because I think it is desirable it should be dealt with quickly?

Yet another case is before this Court, in part because of restrictions imposed by the Parliament on access by applicants for refugee status to the Federal Court of Australia (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 407, 408, and Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 77 [124]; [2000] HCA 57; 176 ALR 219 at 253).

The course of the proceedings

Mrs PT ("the applicant") seeks the making of an order nisi for the constitutional writ of prohibition and an associated writ of certiorari to make 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 (cf Minister for Immigration and Multicultural Affairs; Ex parte Miah unreported McHugh J, 17 January 2000). However, I pass that technical problem by for there are 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 (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 a 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. The power of delegation to the delegate is afforded by s 496(1) of the Act.

Normally, following rejection of such relief by a delegate, a disappointed applicant could seek review before the Refugee Review Tribunal. The Tribunal could then hear the application on its merits and substitute its own decision for that of the primary decision-maker. 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 present 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 or to permit her to make a further application for a protection visa. The latter course is be permitted by s 48B of the Act. However, this application was 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 the Constitution, s 75(v).

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 rigidity in the administration of the Act in respect of minor time defaults, means 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. Re Carmody; Ex parte Glennan (2000) 74 ALJR 1148 at 1149-1150 [2]-[5]; [2000] HCA 37; 173 ALR 145 at 146-147. The question is, therefore, whether her case falls within that class.

The facts

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 has appeared before the Court today on her behalf) and, thirdly, an affidavit by Ms Vanessa Moss, also a solicitor who works with Legal Aid in Perth. For the respondent 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. 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 these 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. She claimed to have spent time travelling thereafter between Sri Lanka, India, the Maldive Islands and Australia to stay with relatives. She said that this was necessary:

"to avoid the thugs tracing me and intimidating my life."

She alleged that she had been intimated 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 and one of whom lives in New Zealand.

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 from 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. She therefore claimed an entitlement to be treated as a refugee.

The delegate's decision

Upon the making of her application on a form which was provided to her the applicant was granted a bridging visa. She was informed of her rights. Her application was ultimately decided, as the Act permits, by the Minister's delegate, Ms K. Corkill, on 11 July 2000.

The delegate's decision recounts the details of the application. It notes certain "country information" about Sri Lanka. This information reported large-scale arbitrary arrests of Tamils in the year between December 1997 to November 1998, just prior to the applicant's departure for Australia. However, the decision continues that human rights groups report that the number of arrests under the emergency regulations and the Prevention of Terrorism Act in Colombo had "decreased over the last few months". Nevertheless, the decision acknowledges that the:

"tamils [sic] are targeted at checkpoints, because the present insurgency is tamil-based."

The delegate concluded:

"Having considered the detailed statement of the applicant, in the light of available country information, I accept her claims at face value . . . Whilst the applicant is Tamil, she would have a low profile and no known connections to the LTTE [Liberation Tigers of Tamil Eelan] or anyone of interest to the Sri Lankan authorities . . . I note that applicant has been free to travel in and out of Sri Lanka in 1995, in 1998 (twice) and in 1999 (in January and again when departing Sri Lanka for Australia). The applicant has not claimed any difficulty with the authorities on any of these occasions."

After noting the reports that persons returning to Sri Lanka following a failed refugee application were "generally speaking . . . safe", the delegate remarked that the applicant had delayed virtually a year in making her application. The delegate went on:

"This behaviour is generally inconsistent with that of people with a genuine fear of persecution on return to their country of origin. I also note that the applicant's passport was issued in 1994 and was extended by the Sri Lankan authorities as recently as 22^nd October 1999. The applicant also states that she receives or is entitled to receive a "widow pension" . . . In view of all the above, I am unable to conclude that the applicant is of adverse interest to the authorities."

Finally, the delegate suggested that the applicant's concern about the criminal element in Colombo amounted to a fear of extortion rather than a fear for a Convention reason, as contemplated by the Act, s 36(2). She rejected the applicant's claim, not being satisfied that the applicant met the criteria for a protection visa.

The supplementary evidence

The applicant annexed to her affidavit a detailed statement. It contained materials which she had not previously provided to the Minister and hence to the delegate. In this statement the applicant explained her default in filing an application to the Refugee Review Tribunal and her failure to provide all of the information contained in the statement earlier. She explained the latter on the basis that she had hoped "it would not be necessary to state the details of what happened to me, much of which I find deeply shaming and distressing to recall and repeat to others".

The statement also included assertions about an attempted rape of the applicant at an unspecified time after 1983. It contains a statement that her daughter and son-in-law would take care of her and that she would not be a burden on Australia if permitted to stay in this country as a refugee. The applicant's statement concludes with a complaint that she had "not been granted the opportunity to date to personally explain my plight to the Australian authorities".

The delegate is not obliged under the Act to conduct an oral hearing or to permit a person in the position of the applicant to make an oral statement before the delegate. However, in her affidavit, Ms Moss points out that the provision of a personal interview is ordinarily afforded before such decisions are made by delegates of the Minister. On the basis of extensive experience in working with refugees and in connection with their litigation, Ms Moss states:

Since the commencement of my work in the area of refugee law in March 1992 to the present day it has been my experience that the delegate of the Minister for Immigration making the primary decision on the application for refugee status invites the refugee applicant to attend an interview. I know of the case of only one family (in which three adult members of it had their own claims to refugee status) for whom the Department of Immigration rejected their applications for protection visas without inviting the applicants to attend an interview. In this case the applications for the family members were not supported by any claims setting out the basis as to why they claimed to be refugees.

No mention is made in the affidavit of Mr Corboult about the practice of delegates in this regard. This fact makes it easier for me to accept as accurate the statement of Ms Moss; Jones v Dunkel [1959] HCA 8; (1958) 101 CLR 298 at 308. I will therefore proceed on the basis that the evidence establishes that it is the normal practice of delegates to invite persons in the position of the applicant to an interview to make an oral statement. The applicant did not receive such an invitation.

Approach : general propositions

For the purpose of this application, I accept the following general propositions:

1. A breach of the requirements of the rules of natural justice, if proved, would ordinarily enliven the jurisdiction and power of this Court to issue a constitutional writ to the officer of the Commonwealth responsible.

2. Assuming that jurisdictional error must always be established in order to secure the constitutional writ of prohibition, breach of the requirements of natural justice, if made good, would establish such jurisdictional error; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 54 [5], 61 [41], 81 [142], 86 [170], 93 [216]; [2000] HCA 57; 176 ALR 219 at 221, 231, 258, 265, 275.

3. A failure by an officer of the Commonwealth to take into account a consideration relevant to the exercise of jurisdiction may also amount to error of jurisdiction, entitling an applicant in an appropriate case to a constitutional writ on that ground; cf Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 537 [59].

4. The detailed provisions of the Act (called a "Code") setting out the manner in which the delegate is to perform his or her tasks do not exclude the requirements of natural justice either to the extent that these are implied as preconditions to the valid exercise of powers conferred by the Parliament or as required by the common law rules of natural justice, grafted onto the statute; cf Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 534 [50]; Re Minister for Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 195 at 407-408 [7] to [15], and Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 79 [134]; [2000] HCA 57; 176 ALR 219 at 256.

5. Nevertheless, the `precise or practical content [of natural justice] is controlled by any relevant statutory provisions, and within the relevant legislative framework." See Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 66 [60] per Gaudron and Gummow JJ.

6. The decision to be made by the delegate is a serious one important for an applicant and also for the Australian community. It is a decision that in some cases can literally affect the life and safety of an applicant. It is a decision to be made having regard to the protective purposes of the Act and the international law that the Act was designed to implement in Australia in respect of the Convention requirements concerning refugees; cf Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 74 ALJR 1556 at 1594 [196]; [2000] HCA 55; 175 ALR 585 at 638.

7. The provision of the constitutional writs is discretionary. This Court has a large discretion that will be exercised according to the circumstances of each case.

Natural justice was sufficiently accorded

In the facts of this case I am not convinced that a reasonably arguable case for prohibition has been made out. I will address first the complaint of a departure from the requirements of natural justice.

1. The Act expressly empowers the Minister, and, thus, the delegate, to refuse a protection visa without giving the applicant an opportunity to make oral or even written submission. See the Act, s 54. No rule of natural justice could be expressed by this Court that would contradict or qualify that provision.

2. The applicant was not limited or confined in any way in the materials which she could put forward in support of her claim. She knew, or was informed, that it was a very important decision for her requiring that all relevant materials should be provided. It was a decision to made correctly by the primary decision-maker and not simply a provisional decision subject to further review and appeal. The affidavit by Mr. Corbould, which was read for the respondent, attached the application of the applicant for the relevant visa. To that application form is attached another form containing basic information for applicants for refugee status. This form includes the following statements:

"You should answer all these questions in your own words and tell [the Department] everything about why you think you are a refugee. You may answer these questions on the application form or submit a separate statement with your application."

...

"Please note that you will be requested to attend an interview only if the case officer decides it is necessary. You may also provide any additional documents which are relevant to your application."

...

"If you do not provide documents to support your application a decision could be made without them."

...

"If you have new information related to your application you should send it to (the Department) as soon as possible so that it can be considered with your application."

"A decision on your application will be made on the basis of all the information you provide and the legal requirements which apply at the time."

The application filed for the applicant, as expressed, bears the imprint of an articulate and intelligent hand. It does not appear to be that of an illiterate person or one lacking fluency in English or otherwise disadvantaged. Different considerations might well arise in respect of persons suffering such disadvantages. That is not the present case.

3. 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 efficient 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.

4. 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 read in the decision.

5. 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 protective visa. It was open to the delegate, in my view, 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 this facility. To impose it unnecessarily would inflict a rule of inflexibility as well as one having significant economic costs; Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) at 388-389. 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.

No other jurisdictional error is proved

Nor am I convinced that the delegate failed to take into account a relevant consideration, namely, the basis of the well-founded fear asserted by the applicant.

It was said that, in her conclusion, the delegate had taken into account the extortion to which the applicant was subjected but had not taken into account sufficiently, or at all, the consideration of the inability or unwillingness of the authorities in Sri Lanka to protect the applicant, as an ethnic Tamil citizen, from such extortion.

It is important that this Court should not scrutinise the delegate's reasons in a pernickety way with an eye vigilant to the discovery of error. (See Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, 291-292.) In the delegate's decision the critical passage appears towards the end of her reasons. There the delegate said, in the passage which I have already quoted:

I note that the applicant has expressed a fear of "criminal elements who will mistreat ordinary tamil citizen like me in Colombo". The behaviour feared by the applicant in those circumstances amounts to extortion rather than persecution for a Convention based reason.

I would not approach my conclusion on this second ground on the footing that there is a general rule relating to extortion that takes such a case outside the Convention definition of "refugees". Instead, to my mind, the considerations to which the respondent pointed indicate sufficiently that the delegate did address the relevant considerations in reaching her conclusion.

She correctly identified the criteria under clause 866.221 of the Migration Regulations, which in turn refer to the provisions of the Act, s 36(2). She referred to the definition of "refugee" in the United Nations Refugees' Convention. She accepted the claims of the prosecutor at face value. She noted that the prosecutor had expressed a fear of criminal elements who would mistreat her because she was a Tamil. She made a finding of fact that the prosecutor's claimed fear of persecution on return to Sri Lanka was not well founded, that being the matter which she had to decide.

The delegate was not satisfied that the prosecutor was a person to whom Australia had protection obligations under the Refugees Convention. As I read the delegate's reasons, apart from other considerations she was unconvinced that the applicant had manifested the element of fear which is part of the definition. Having regard to the somewhat dilatory way in which the applicant asserted that fear, at the very end of a one-year stay on a visitor's visa with her family, this was a conclusion that was open to the delegate in the circumstances.

Order : application dismissed

Accordingly, neither of the grounds that were relied on by the applicant have been made out as reasonably arguable. In my view, the application does not raise a reasonable foundation for the issue of an order nisi. For these reasons, I dismiss the application.

MR RITTER: There is an application for costs, your Honour.

HIS HONOUR: In the matter of Eshetu, Justice Gaudron and I suggested that, because the invocation of the jurisdiction of this Court is necessitated by the provisions of the Act, that in appropriate cases it was not just to impose the burden of costs of coming to this Court on an applicant. It is not the applicant's fault that the Parliament has made the provision that it has, that denies access to the Federal Court, which should be a somewhat more economical and available place to a person like the applicant to bring her application. Why should I not follow that approach here? It is in The Minister for Immigration v Eshetu (1999) 197 CLR 611, page 641, paragraph [104].

MR RITTER: Could I ask your Honour did that lead in that case to an order that there be no costs or an order - - -

HIS HONOUR: Yes, no costs.

MR RITTER: Yes. Your Honour, the process that you have mentioned, the legislative scheme, means that an application of this type must come to this Court rather than the Federal Court.

HIS HONOUR: That is right.

MR RITTER: If the application had gone to the Federal Court and been dismissed, then there would ordinarily be an order with respect to costs.

HIS HONOUR: That is right, but the only reason that people in the position of the applicant have to come to the High Court of Australia, the final court of the nation, is because of this provision that effectively cuts them out of the ordinary court. I notice that in Justice McHugh's decision in Cohen he, like so many of the Justices of this Court, referred to the fact that the Federal Court is, and ought ordinarily to be, the place to which cases of this kind should go.

MR RITTER: Yes.

HIS HONOUR: His Honour said at paragraph 39:

"One of the principal reasons for the setting up of the Federal Court in 1976 was the recognition that, with more and more matters arising under laws of the Parliament, this Court could not act as a federal trial court and still have adequate time for research and reflection in respect of the important matters falling within its constitutional and appellate jurisdiction."

That is why the Federal Court was established and yet here I am, at the end of a day where the Court has been sitting in a matter of national importance, dealing with a case of this kind.

MR RITTER: Yes. With respect, if I could say two things in relation to that, your Honour. Firstly, in this case as in other cases - well, this case is a bit different from other cases in that the applicant did not proceed with an application in a timely fashion to the Refugee Review Tribunal firstly.

HIS HONOUR: The Minister had a power to waive what was, after all, a relatively small time default.

MR RITTER: Yes.

HIS HONOUR: And the Minister did not exercise that power and that necessitated coming to this Court. Until the Justices of this Court take in appropriate cases a position in respect of costs to signify that if cases are forced to this Court then parties who otherwise might have got their costs will not get their costs, no message will be sent.

MR RITTER: Could I just make one final point, your Honour, and that is the issue which the position that your Honour puts raises is whether the implications of the legislative scheme ought to be visited upon the Minister with respect to a discretion as to costs or whether that is appropriate in all of the circumstances of a case like this, when your Honour has considered that the application has no foundation in so far as supporting constitutional relief. They are the submissions I make on costs.

HIS HONOUR: Yes. What do you say, Mr Christie?

MR CHRISTIE: Your Honour, I would perhaps endorse your Honour's views that the applicant has been forced to come to this Court or to any court principally because of the very strict time limits imposed under the Act and - - -

HIS HONOUR: But that is the law of the land and it is the law made by Parliament and it is the setting in which the discretion for costs has to be exercised.

MR CHRISTIE: I appreciate that, your Honour, notwithstanding that - - -

HIS HONOUR: There is a slight difference in the case of Eshetu that I mentioned and that is that in that case, I think it was the bifurcation of the proceedings that led to the applicant coming to this Court. I do not know whether that is appropriate or the same here. I will read you the passage of what Justice Gaudron and I said. It is at 197 CLR 641:

We would dismiss the appeal and order the Minister to pay the costs of the appeal. We would dismiss the application for relief under section 75(v) of the Constitution. We would make no order as to the costs of that application, it having been brought, in large measure, in consequence of the bifurcated review process mandated by section 476(2) of the Act.

Now, that is what Justice Gaudron and I said in that case. I should observe that we were dissenting in the matter but it does represent, or it did at that time, represent my view on the proper exercise of the cost discretion in that case.

MR CHRISTIE: Your Honour, the provision there, of course, is in relation to the powers of the Federal Court to deal with natural justice. It is still a limitation placed on the powers of the Federal Court by legislative schemes. In my submission, that is really of no significant difference to this particular case whether the limitation, although it applies to a different matter, effectively this is not a reviewable decision as defined under the Migration Act and therefore prevents the matter from going to the Federal Court. The position still remains the same, it is the imposition placed on the applicant and, indeed, even more so on your Honour, that the matter needs to go directly to this Court and also because of the scheme - - -

HIS HONOUR: But what do you say to Mr Ritter's point that the only reason, or that the governing reason why the matter comes to this Court and to me is because your client did not act with due diligence in getting the matter before the Refugee Review Tribunal in the first place, and if you had done that you might well have had a hearing with - you would have had a hearing and you would have had oral evidence and you might have had a different decision but it was the failure to bring that proceeding that has led on to the necessity to come to this Court.

MR CHRISTIE: The delay of some four days between 11 August and 15 August has caused all the applicant's problems, I entirely agree, but given that it was a very short delay and given there is a discretion as to costs I ask you to exercise in her favour in the sense that no order for costs be made.

HIS HONOUR: Your client was four days out of time.

MR CHRISTIE: The letter was collected from the post office on the 11 August. On 15 August the time expired. On 16 August she was advised that an application had to be made the previous day.

HIS HONOUR: And she asked the Minister, in effect, to waive that to permit her to make a fresh application and the Minister declined? Is that correct?

MR CHRISTIE: Ultimately, yes. She did not do that immediately, but she initially made the application to the Refugee Review Tribunal, firstly, to see whether they could - - -

HIS HONOUR: As I understand it or as I remember it, under the Act they are not authorised to extend time. It must be the only tribunal in the nation that does not have a power to waive immaterial time defaults. Anyway, is there anything else you wish to say?

MR CHRISTIE: No, your Honour.

HIS HONOUR: Yes. Anything else you wish to say, Mr Ritter?

MR RITTER: Yes, your Honour, only on the last point, that, again, that system as to the Tribunal not being permitted to accept applications out of time, whether one might think it is a good idea or a bad idea, arises from the particular legislation at hand, being legislation from the Commonwealth Parliament.

HIS HONOUR: That is true, but this Court has a general discretion to be exercised conformably to law, but also comformably to the justice of the case.

MR RITTER: Yes.

HIS HONOUR: And the justice of the case is such that indisputably in every court and tribunal in this land, virtually, there would have been an extension of time, and especially in a matter that was so serious or potentially serious, affecting a person such as the applicant, a claimant for refugee status, and it seems to me that the justice of the case requires that there be no order as to costs.

MR RITTER: Again, the only point I would make in response to that, your Honour, is that as that is the legislation would it be appropriate to, in a sense, visit that legislation upon the Minister in refusal of costs in a case where ordinarily the Minister would be granted costs?

HIS HONOUR: It is simply a matter of weighing up all the elements of justice in the case, and those elements of justice include the justice of the fact that the applicant was out of date by a couple of days, four days, and, but for that, this Court might never have been troubled.

MR RITTER: Could I just make one point on that on a factual basis. I do not know that the application was made - that we have evidence as to the date the application was made. We have evidence that she was instructing a migration agent on 16 August and we have evidence that 27 September the RRT refused to accept the application. There simply seems to be a gap in the evidence as to precisely when the application was made. I simply bring that matter to your Honour's attention factually.

HIS HONOUR: Yes. When was the first indication to the Department of the request effectively for an extension of time?

MR RITTER: To the Department there was a letter - - -

HIS HONOUR: To the delegate. There was first an attempt, was there not, to file an application for review to the Tribunal?

MR RITTER: Yes.

HIS HONOUR: When was that filed?

MR RITTER: That is what we do not know, your Honour. That is the gap in the evidence. The correspondence to the Minister was 18 October 2000 and then that was replied to on 1 December 2000 and then there was on 31 January 2001 at that stage a letter to the Minister seeking the exercise of the discretion to allow a further protection visa application to be made.

HIS HONOUR: That is well down the track. Tell me the last day for the filing of the application for review in the Tribunal?

MR RITTER: The time commenced running seven days after the date of the decision, which was 11 July. That seven days is a matter of regulation.

HIS HONOUR: So that would mean 19 July?

MR RITTER: Yes. There would then be 28 days after that.

HIS HONOUR: That would take it to, say, 17 August?

MR RITTER: Yes.

HIS HONOUR: When was the application made to the Tribunal?

MR RITTER: That is the gap in the evidence.

HIS HONOUR: I see. When is the first sure date that the Department had notice of the fact that the applicant was seeking - - -

MR RITTER: The application to the RRT is an application to that Tribunal, not the Department. The Department was informed by a letter dated 18 October in which the applicant applied to the Minister under section 417 to make a decision in favour of the application for a protection visa.

HIS HONOUR: So that is three months?

MR RITTER: Yes. Then the 48B request is some considerable time after that, as we have discussed.

HIS HONOUR: Yes. Well, Mr Christie, what about this gap in the evidence? Disputed issues of costs always take up the longest time in courts. It does seem that it is not quite the four days that you were presenting to me. It may be, in fact, four days but I have no evidence before me of any shorter time than three months, which is a considerable delay.

MR CHRISTIE: So the evidence is that she consulted a migration agent on 16 August.

HIS HONOUR: Yes, but the Department does not know that. The Minister does not know that. That is just something private to her.

MR CHRISTIE: Yes, but it is simply a matter of logic that if she had one day - if she had made that in time the application would have gone to the Tribunal the same day or the next day. In fact, it is not a matter of evidence, your Honour, but my understanding is that a telegram was sent on that day to the Minister's office.

HIS HONOUR: I would not receive evidence from the Bar table from Mr Ritter. I do not see why I should receive it from you.

MR CHRISTIE: No, your Honour. I appreciate that. All I can say, your Honour, is that on the evidence that obviously some action was taken prior to the Tribunal's decision which is before the Tribunal which is - I think there is a date in mid-September. For the Tribunal to make that refusal they had obviously had to have an application before that date but, in my submission, the four days arise from the date that she received the letter and the date that she first understood when an application should have been made and that, in fact, expired the day before she saw the - namely on 15 August - migration agent.

My submission is perhaps it is not important as to when she made the application to the Minister for him to exercise his discretion other than it occurred after she had been finally notified by the Tribunal that her application for an extension of time or for the Tribunal to accept her application had been refused.

In my submission, that necessarily dealt with the question of whether the Minister's letter had been posted within the three days, which it had to have been posted for the deemed time limit to have occurred.

HIS HONOUR: Yes.

MR CHRISTIE: The deemed time limit is seven days from the date of - is 28 days plus seven days from the date of the letter, but for that to apply, the letter has to be posted within three days. That is why the application was made to the Tribunal. Given that it was refused, I think on 10 September, then, in my submission, that would indicate that that application was made promptly and would have been made in August.

HIS HONOUR: Yes, thank you very much.

MR RITTER: Sorry to burden your Honour further with evidential matters, but could I point to the final document in the applicant's affidavit, which is the letter from the migration adviser that she consulted and draw your Honour's attention to the last paragraph on the first page, which confirms the contact on 16 August 2000 at 9.00 pm. It contains then the advice that he gave. Then, over the page, she made an application to the RRT - - -

HIS HONOUR: Does that mean that she consulted the migration agent within time, on the last day?

MR RITTER: It does not appear to be that case. He says that he advised that it appeared that an application to the RRT was now out of time and there was no extension of time available, but that it was her responsibility that an application to the RRT should be made immediately in case the letter had not been posted within seven days. Now, that may mean that the quick calculation of dates that your Honour and I did a little while ago may have been slightly out.

HIS HONOUR: Yes.

MR RITTER: The next point is over the page, where he details what the applicant next did:

She made an application to the RRT, because the application was made out of time. She then made an application to the Minister -

under section 407, and the time frame was that contact on 16 August with the migration agent, 27 September the RRT formally notifies refusal to accept, and the letter to the Minister is not until 18 October 2000, if your Honour please.

HIS HONOUR: I have just dismissed the application of the applicant PT for an order nisi for a writ of prohibition and of certiorari. A question arises as to the disposition of the costs of the application. Upon that question there have been competing submissions.

In Minister for Immigration v Eshetu (1999) 197 CLR 611 at 641 [104] Justice Gaudron and I considered that, in the circumstances of that case, no order should be made as to the costs of the application under s 75(v) of the Constitution:

"it having been brought, in large measure, in consequence of the bifurcated review process mandated by section 476(2) of the Act."

See also Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 595 [244]

However, that was a case in which there was already an appeal before this Court. The consideration which led Justice Gaudron and myself to our conclusion as to costs was that a separate process was necessitated because of the provisions of the legislation. In those circumstances it would have been unjust to burden the applicant with two costs orders in related proceedings. This present is not such a case. There is no concurrent appeal before the Court. I have before me only the application of the applicant. It is before me, in effect, because the applicant became out of time and could not therefore enliven the jurisdiction of the body to which most naturally and appropriately her case would have gone, namely the Refugee Review Tribunal.

After the applicant became out of time there was then a further delay. The exact delay is not certain. However, it is of a piece with the general lack of diligence of the applicant in pursuing her rights which provided part of the background to the decision of the delegate.

The normal rule as to costs in this Court is that those who bring applications and fail must pay the costs. Whether those costs can, or will, be recovered is another question. It is not a question that concerns this Court.

I see no reason to depart from the normal principle applicable to such cases. Accordingly, the application is dismissed with costs.

The Court will now adjourn.

AT 7.20 PM THE MATTER WAS CONCLUDED