Applicant S26/2002 v Refugee Review Tribunal & Anor S26/2002 [2002] HCATrans 463 (20 September 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S26 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

PHILIP RUDDOCK, in his capacity as Minister for Immigration and Multicultural Affairs

Second Respondent

Ex parte -

APPLICANT S26/2002

Applicant/Prosecutor

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 SEPTEMBER 2002, AT 10.30 AM

(Continued from 6/6/02)

Copyright in the High Court of Australia

MR J.M. PATEL: If it please your Honour, I appear for the applicant. (instructed by the applicant)

MR J. BASTEN, QC: I appear for the second respondent, if the Court pleases. (instructed by the Australian Government Solicitor)

HIS HONOUR: Would you just move to the lectern in front of the microphone, Mr Patel, so that we can get a record of what you are saying. Yes, Mr Patel.

MR PATEL: Your Honour, in this matter a draft order nisi was filed with affidavit in support on 28^th - affidavit of the applicant, sworn on 28 February 2002.

HIS HONOUR: On the 28^th of what? Sorry, what month?

MR PATEL: February. It may assist the Court: the respondent has put in a bundle of the documents which is a bit more - it is organised and in order.

HIS HONOUR: Yes, I have that, thank you.

MR PATEL: Since then we have filed further affidavit sworn on 18 September 2002.

HIS HONOUR: Yes. Now, you read those two affidavits, Mr Patel?

MR PATEL: Yes, your Honour.

HIS HONOUR: Is there any objection to those, Mr Basten?

MR BASTEN: No, your Honour.

HIS HONOUR: Very well. I have read the affidavits of the applicant of 28 February 2002 and 18 September 2002. Yes.

MR BASTEN: Your Honour, perhaps I should have said, if your Honour is dealing with the evidence, that we have no objection to the last affidavit on the basis that we may have leave to file in Court an affidavit in response.

HIS HONOUR: Okay. Do you have any objection?

MR PATEL: No objection. We have read that affidavit.

MR BASTEN: An affidavit of Mr Cranwell; the original and a copy for your Honour.

HIS HONOUR: Thank you. Yes, I have read that.

MR PATEL: Your Honour, in relation to ground 3) in the draft order nisi, we have added further particulars and seek leave to file additional particulars. I have given a copy to my friend.

HIS HONOUR: Yes. Hand those up, thank you, Mr Patel. Yes.

MR PATEL: Your Honour, in support of the application, we have filed written submissions. That is dated 18 September 2002.

HIS HONOUR: Yes. I have that, thank you.

MR PATEL: Your Honour, as we have pointed out in the submissions and also what appears from the affidavit, the central issue in this matter as far as the applicant is concerned is that he finds himself in some sort of a dilemma because, on the one hand, it is being maintained by the respondents that he is entitled to the protection in France and he should have no difficulty in getting these travelling documents. We have put evidence which shows that it is not crystal clear at this stage whether or not he would be allowed to enter France or whether he would be issued travelling documents.

The position is this, your Honour, that apart from any legality, the applicant is quite ready and willing to go back to France if he can obtain the travelling documents. Our understanding is that there is a bit of a stand-off between the French authority and Australian authority as to the correct position, whether he is entitled to refugee status here, and this has not been cleared up through proper diplomatic channels. The thrust of our submission is that this was the matter which should have been looked at by the Tribunal instead of relying on information which was hearsay and not from an authoritative source. The Tribunal relied on its own interpretation of the position from whatever information it had.

As it appears from the reasons given by the Tribunal that no concrete information has been given in the reasons which demonstrate that the Tribunal had sound basis to assert that there was no impediment in the way of the applicant for him to return to France. In the affidavit, the particular point I would like to address, your Honour, is that the applicant sought access to the documents under the Freedom of Information and he was given the whole file of RRT and when we found that - we were particularly looking for the documents, the information which the Tribunal was relying on or which formed the basis of its decision, we could not find any documents which gave us a proper insight into the information which the Tribunal was relying on. So, we wrote to the officer concerned, and annexure "E" to the affidavit in particular - - -

HIS HONOUR: Just before you proceed any further, Mr Patel, do you require an extension of time to bring this application?

MR PATEL: Yes, your Honour.

HIS HONOUR: And do you make such an application?

MR PATEL: Yes, we do, your Honour.

HIS HONOUR: On what grounds?

MR PATEL: On the grounds that the applicant had adopted the course which he believed would resolve the matter so he approached the Minister. There was applications made to the Minister for recognition of whether or not a favourable decision could be made by him and, secondly, because of the lack of information, he relied on the French authority to resolve - the matter would be resolved between the French authority and the Australian authority. He attended the embassy several times but it was only when we wrote to the French Consulate that we got a response which now officially, at least, states that they would issue the documents subject to what information they receive from the Australian Immigration authority.

Now, he was also a member of a class action which, of course, he did not pursue any further because he thought that was - he did not hear from it and he should have made inquiries, it is conceded. But, at the same time, he was also exploring other avenues, particularly persuading the Minister to help him and also the French Consulate to assist him in resolving his dilemma.

In the circumstances, your Honour, he finds himself in the situation where he has got nowhere to go because until his status is recognised, only place, perhaps, he can be sent back is Sri Lanka and that is not the intention, as we understand, of the Australian authority or, for that matter, French authority. So, in the circumstances, we say that this is a matter where the Court ought to exercise its - should exercise its discretion and grant him the time for this belated application.

HIS HONOUR: You go ahead with your argument. I will consider the question of extension of time in due course.

MR PATEL: Yes. Your Honour, I was referring to annexure "E" to the affidavit of - particularly, the second information. We have the text of the conversation on 31 October, particularly the last line where it says:

If approaches are to be made to the French Government in relation to a particular case, this should be done through DFAT.

We believe that this was a significant information that, at that stage, it was clear or should have been clear to the Tribunal that it was necessary to put in train inquiries through Department of Foreign Affairs to ascertain the position, what would be required to be done by the applicant to obtain his travelling documents and what was the attitude of the French immigration authority. So, apart from what we have put in the written submissions, your Honour, I have nothing I can usefully add much to it unless your Honour wishes me to address any particular point.

HIS HONOUR: Thank you, Mr Patel. Yes, Mr Basten.

MR BASTEN: Your Honour, the question of an application for extension of time was dealt with in our submissions of 3 June which are in our bundle at page 2 at paragraph 4.

HIS HONOUR: The extension is needed because of Order 55 rule 17, is that right?

MR BASTEN: That is so, your Honour, yes. The decision in question was made in October 1998.

HIS HONOUR: Just a moment, Mr Basten. Yes.

MR BASTEN: Your Honour, the chronology is such that the Full Court judgment which was not the subject of any special leave application was delivered on 26 August 1999. An application was then made to the Minister for a more favourable decision which was dealt with by 4 April of the following year, 2000. Whilst the bifurcation of the old jurisdiction under section 476 might, perhaps, justify or explain no steps being taken before the end of 1999 to bring a matter before this Court, we say the delay since the end of 1999 is unexplained and inexcusable, and your Honour would not grant an extension of time in this case for those reasons.

HIS HONOUR: Are any of the recent amendments to the legislation relevant to this application?

MR BASTEN: No, your Honour, we think not.

Your Honour, the only other matter which is not addressed in those written submissions is the present application to amend the particulars to allege procedural unfairness. There are two matters sought to be raised: one, the first of the grounds relates to the most recent information not being revealed to the applicant. The information which is relied upon and is so described is referred to by the Tribunal in its judgment at page 32 of the bundle at about point 7 in the third line of a paragraph beginning "The question". That appears to be the information which is the subject of the correspondence with the applicant before the Tribunal's decision which is annexed to Mr Cranwell's affidavit. So, we say, as a matter of fact, that ground could not be made out.

The second ground asserts that all material information had not been given to the applicant. The only information which appears to fall into that category is the information provided by the French authorities to the Tribunal in 1996 which is set out in full, I might add, in the reasons of the Tribunal at page 22 of the bundle. So that at the very least the applicant has been cognisant of that information since October 1998.

It does not provide a basis for challenge, however, in this Court unless it is in some respect adverse. The information is dealt with at page 32 and the only matter relied upon, as we would understand the paragraph to which I took your Honour, is that - and this is about six lines into the paragraph:

The earlier information suggested that France would not consider -

his status -

until the application in Australia is resolved.

That is a statement of fact which appears to be uncontroversial, and it is the only matter which was relied upon by the Tribunal in reaching its decision on the critical issue. We would not understand there is any substantial issue of procedural unfairness raised by either ground.

The other matters which were raised have been dealt with in our written submissions. Unless there is anything further which your Honour would wish to hear, those are my submissions.

HIS HONOUR: Thank you, Mr Basten. Yes, Mr Patel.

MR PATEL: Your Honour, it is true that one of the information I think that is.....admitted that relates to the information which the Tribunal had used which was not directly applicable to this particular case. It was in relation to that information was delivered by the French Consulate in relation to quite another matter and the Tribunal had just picked up that from another matter and sought to use it.

What we are putting is that this was not put to the applicant at the hearings, saying that, look, we have certain material or certain information. Now, even from the reasoning itself, it appears that the Tribunal sort of conveys the impression that it has information which it has obtained directly for the purposes of his application and how it is going to impact on him.

Now, if this matter was properly put to the applicant - and it has been addressed but the impression one is left with is that, that is not really the information the Tribunal was relying on. It conveyed that it had recent information and it was the totality of the information, not just one particular piece of information. The impression that was being conveyed that the Tribunal had much more than what appears in this particular information because it goes nowhere. On the face of it, it clearly says that France does not consider that it had any obligation under international law. So, it does not really, in a sense - on proper reading of it, there does not appear to be any adverse material.

What does not appear or emerge is that if it was going to be used as adverse to the applicant, then the Tribunal ought to have drawn the attention of the applicant saying, "Look, here's the information. We consider or we follow it goes against you, rather than for you." So, this matter was just - inference was drawn without any opportunity being given to the applicant himself, that, "Look, here's the information."

When we say that we did not receive all the information, it appears from the reasoning that the Tribunal was relying not on any particular source of information, although it has cited, but it conveys the impression that it had received information from various sources. For instance, it also relied on verbal conversation had between one of the officers of the Tribunal with one of the employee of the French Consulate. It was not established what position, if any, this person occupied in the French Consulate and how authoritatively she could give information.

So, on this basis, it appears from the reasoning that the Tribunal has relied on more than what is actually cited in the decision, and the decision itself, in as much as it purports to convey that the French - according to the information which the Tribunal has received, the applicant should have no problem returning to France, and this was based on the information. So, on that basis, we sought information saying that there has to be much more than that which the Tribunal has apparently relied on, although it has not cited complete text of each and every piece of information it may have received.

This is the argument we are putting, that there is no way of knowing if there was any information received or not, apart from what we can gather from the file. It may have been lost. Even as far as the conversation is concerned, it was only after further inquiry we found that there was some conversation and it is conceivable that the way the Tribunal has approached its inquiry that it was relying on multifarious source of information.

This is the danger which was pointed out in Muin v Refugee Review Tribunal which we submit is quite relevant in this particular case because the Tribunal has apparently relied on the fleeting impression it has gathered from a number of sources and its decision is based on that kind of information which, of course, it would not cite in detail in its reasoning, and it has compendiously put that - have got this information. So, those are our submissions, your Honour.

HIS HONOUR: Thank you. Is there anything you wanted to add, Mr Basten?

MR BASTEN: No, your Honour.

HIS HONOUR: I will reserve my decision in this matter.

AT 10.51 AM THE MATTER WAS ADJOURNED