Applicant S59/2004, Ex parte - Re MIMIA & Anor [2004] HCATrans 116 (14 April 2004)

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Applicant S59/2004, Ex parte - Re MIMIA & Anor [2004] HCATrans 116 (14 April 2004)

Last Updated: 20 April 2004

[2004] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S59 of 2004

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition against THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

LUKE HARDY IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

APPLICANT S59/2004

Applicant/Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 14 APRIL 2004, AT 9.32 AM

Copyright in the High Court of Australia

APPLICANT S59/2004 appeared in person.

MR S.B. LLOYD: Your Honour, I appear for the first respondent. (instructed by Clayton Utz)

HIS HONOUR: Would you swear the interpreter, please.

KHALID RASHID SAGER, affirmed as interpreter:

HIS HONOUR: There is a notice from the Registrar indicating that the second respondent, Luke Hardy in his capacity as a member of the Refugee Review Tribunal, submits to the orders of the Court, save as to costs. He is excused. Would you explain that the second respondent has submitted to the orders of the Court, the first respondent is represented by Mr Lloyd, who is a barrister, and the first respondent contests the relief which the applicant seeks.

APPLICANT S59/2004 (through interpreter): Yes.

HIS HONOUR: Yes, very well. We have to do some technical things. First of all, there is an affidavit which is deposed to by the applicant and filed on his behalf, which was filed on 1 March 2004. Does the applicant ask me to read that affidavit?

APPLICANT S59/2004 (through interpreter): You mean to say, I should read it?

HIS HONOUR: No, I am putting it on the record of the case. He wants to rely on that affidavit.

APPLICANT S59/2004 (through interpreter): Yes.

HIS HONOUR: Yes, very well. Well, what do you say, Mr Lloyd?

MR LLOYD: In relation to paragraphs 1 through to the second 5, there are objections, primarily on the grounds of relevance, but occasionally on the grounds of, for example, the two paragraph 5s, hearsay and opinion. They seem to go to just establishing the merits of the protection visa application. They do not go to any conceivable ground of review.

HIS HONOUR: Would you explain to the applicant that the barrister for the Minister objects to paragraphs 1 to the second paragraph 5 of the application on the basis that they are not relevant to the proceedings, but I will admit the paragraphs, subject to their being shown to be relevant.

APPLICANT S59/2004 (through interpreter): Thank you.

HIS HONOUR: Is there anything else, Mr Lloyd?

MR LLOYD: I would also, on the same basis, object to the second half of paragraph 9, the second paragraph within paragraph 9, up to paragraph 13, which again seem to address the merits.

HIS HONOUR: Please explain to the applicant that Mr Lloyd also objects to the second part of paragraph 9 to the conclusion of the affidavit, contending that those paragraphs are not relevant to the proceedings in this Court, but I will admit those paragraphs, subject to their being shown to be relevant.

APPLICANT S59/2004 (through interpreter): Okay.

HIS HONOUR: I feel I should explain to the applicant that this is not an appeal court which is dealing with an appeal from the Refugee Review Tribunal. He is claiming relief from the High Court, and the relief that we can give is very limited. This Court cannot simply rehear the matter on the merits, but can give relief if it is shown that the Tribunal has acted outside or beyond its jurisdiction.

MR LLOYD: Your Honour, perhaps just to finish off the affidavit, I have not objected to paragraphs 6, 7, 8 and the first paragraph of paragraph 9. They appear to go to questions of delay. I note the applicant in his order nisi is seeking an enlargement of time. If your Honour were minded to consider that issue today, I would probably have to cross-examine the applicant. If, however, your Honour would only, if satisfied that there was any substance at all, remit the matter to the Federal Court, I could allow that issue to be dealt with in the Federal Court. So I do not want to waste your Honour’s time, but if your Honour is minded to consider the question of delay today - - -

HIS HONOUR: I am inclined to deal with the whole matter today.

MR LLOYD: Certainly. Well, I suppose then that I would need to have some brief cross-examination of the applicant.

HIS HONOUR: Would you explain to the applicant that Mr Lloyd, the barrister for the Minister, wishes to ask the applicant some questions
concerning the paragraphs of his affidavit which relate to the delay between the notification of the decision of the Tribunal and the commencement of the proceedings in this Court. There is a long delay between the decision of the Tribunal, which was 25 September 2002, and its notification to the applicant on 22 October 2002, as it is claimed, and the commencement of proceedings in this Court on 1 March 2004. So it is 22 September 2002, claimed notification on 22 October 2002 and the commencement of proceedings in this Court on 1 March 2004. Does the applicant understand the issue, the issue of delay?

APPLICANT S59/2004 (through interpreter): I really do not understand the issue because the case was filed by my lawyer, and it was him who mishandled my case, and with the help of my friends I have lodged this application.

HIS HONOUR: Yes, very well. Well, the applicant should come forward into the witness box. I will not ask you your name because under the Migration Act you are entitled to, and I am obliged to, keep your name private. However, you are the applicant in these proceedings.

APPLICANT S59/2004 (through interpreter): Yes.

APPLICANT S59/2004, affirmed:

HIS HONOUR: Well, you are the applicant and you have sworn an affidavit, which was filed in the Court on 1 March 2004?---Yes, I came myself with my friend to submit this.

And this is the affidavit which you have filed?---Yes, this is it.

Do you have a copy of that affidavit in your papers?---I am not sure about it because I gave these documents to my friend and he handed them to me.

Well, perhaps I had better give you, during the questioning by Mr Lloyd, my copy of the affidavit, which you can hold during that time. If you have any uncertainty about the questions that are asked or cannot understand what is in the affidavit in the English language, then I will have it translated for you?---Okay.

MR LLOYD: And I have a spare copy, if your Honour wants to have this.

HIS HONOUR: Thank you. Yes, hand up the spare copy. Yes, Mr Lloyd.

CROSS-EXAMINED BY MR LLOYD:

MR LLOYD: Perhaps I should just ask you first about this affidavit. Who prepared it for you?---It was prepared by a friend of mine who is very helpful and he did it for me.

And do you read English?---I can read a little bit, like my name and date of birth, but other words I cannot read.

Did you read the contents of this affidavit before you signed it?---As I said earlier, I cannot read.

HIS HONOUR: Can you read Punjabi?---I can read Urdu.

MR LLOYD: So if you cannot read this, how do you know what it says?---At that time when he wrote this, he explained it to me, that I am writing all these things in order that you will be able to get a visa, but since time has passed and it is very hard for me to remember what he wrote in all these four pages.

Can I ask, is the signature on the last page, or the signature on, I suppose, the right-hand side on the last page, is that your signature?---Yes, these are my signatures.

So these are your – just one of them or both of them?---One signature is mine; the other one is of JP.

I ask you to have a look at this document and, in particular, have a look on the last page and tell me if the signature on that is yours?---Yes, it is my signature.

Thank you. I tender that document, your Honour.

HIS HONOUR: Yes. Hand up the document. Would you identify the document?

MR LLOYD: The document is the applicant’s application for review at the Refugee Review Tribunal.

HIS HONOUR: That document will be marked exhibit R1.

EXHIBIT R1: Applicant’s application for review at the Refugee
Review Tribunal

MR LLOYD: In your affidavit, you said “When my protection visa application was refused” – I think you mean “by” – “DIMIA, He applied in Refugee review tribunal”, do you mean by that that when the Department of Immigration refused your application that your migration agent applied to the Tribunal for you?---Yes, it was done by him.

But you signed it?---Yes.

Now, you also say in your affidavit that the migration agent told you that you did not need to go to the Tribunal, is that correct?---I don’t remember it now because, as you know, when you go to lawyers, they don’t ask you all questions and sometimes they do fill it out themselves. So I don’t clearly remember what he said to me, because I cannot myself read and understand, so whenever he asked me to sign any papers, I just go there and whatever he is telling me I sign on it.

HIS HONOUR: Did the applicant attend the hearing of the Tribunal?

MR LLOYD: I will come to that. The applicant signed a form which indicated he did not want to attend the hearing of the Tribunal.

HIS HONOUR: I see.

MR LLOYD: Now, your affidavit might give an impression that you relied upon your migration agent to deal with the Tribunal and you did not deal with the Tribunal yourself. Would that be a correct impression?---Yes, it is true. I have to deal through him and I have to trust him because I myself was not able to pursue my case myself.

Did you communicate with the Tribunal at all?---No, I can’t do it.

It is your evidence that you did not ever communicate with the Tribunal about anything?---No.

I ask you to have a look at another document. Can you tell the Court whether or not that is your signature on that document?---Yes, that is my signature.

I would tender that document.

HIS HONOUR: Identify the document.

MR LLOYD: The document is a letter from the applicant to the Tribunal notifying it of a change of his address, dated 24 July 2001.

HIS HONOUR: I mark that document exhibit R2.

EXHIBIT R2: Letter from the applicant to the Refugee Review
Tribunal dated 24 July 2001

MR LLOYD: I would like to show the applicant another document. Can you tell the Court whether this document has your signature?---Yes.

I tender that document. That is another letter to the Tribunal received on 19 November 2001, notifying a further change of address.

HIS HONOUR: I mark that exhibit R3.

EXHIBIT R3: Letter to the Refugee Review Tribunal received on
19 November 2001

MR LLOYD: I ask the applicant to look at that document. Is that also your signature?---Yes.

I tender that document. That is a document in which the applicant is making a request for freedom of information to the Tribunal.

HIS HONOUR: I mark that exhibit, which bears the date 1 May 2002, as exhibit R4.

EXHIBIT R4: Request for freedom of information dated 1 May 2002

MR LLOYD: I show the applicant another document. Would you agree that that is your signature on that document?---Yes.

I tender that document. It is another letter received by the Tribunal from the applicant, asking for evidence of his current status of his application with the Tribunal.

HIS HONOUR: I mark that exhibit R5. It bears the date 8 August 2002.

EXHIBIT R5: Letter from the applicant to the Refugee Review
Tribunal dated 8 August 2002

MR LLOYD: Show these documents to the applicant. The document on top, is that your signature on that document?---Yes.

And stapled to that there are photocopies of a passport; is that your passport?---Yes.

The other document is a document from the Refugee Review Tribunal which refers to the status of your application with that Tribunal. It has a particular date for your birth date with a circle around it. Is that a document that the Tribunal sent to you which you asked to be corrected? I am referring to a document dated 9 August 2002?---What about this?

Is that a document that was sent to you, which you asked to have the date corrected because that was not the date of birth on your passport?---Yes.

I would tender both of those bundles. The first one is a letter from the Refugee Review Tribunal dated 9 August 2002 which refers to the status of the application before the Tribunal and refers to the applicant with the date of birth specified as 1 January 1976. The second is a communication from the applicant to the Tribunal asking for that document to be corrected because the date of birth was incorrect and attaching a copy of his passport which purports to have the correct date of birth.

HIS HONOUR: I will mark the first such tender exhibit R6 and the second such tender as exhibit R7.

EXHIBIT R6: Letter from the Refugee Review Tribunal dated
9 August 2002

EXHIBIT R7: Letter from the applicant to the Refugee Review
Tribunal attaching a copy of the applicant’s passport

MR LLOYD: Perhaps if I can ask your Honour, before handing the document back to the applicant, for a further....., on the second page of the passport there is a photograph of the applicant and below that there is a heading “Signature of bearer”. If your Honour notes the nature of that signature, and I will just ask the applicant about that.

HIS HONOUR: You wish him to see which exhibit?

MR LLOYD: Well, I suppose that the last exhibit that I - - -

HIS HONOUR: That is exhibit R7. You are being shown exhibit R7 now.

MR LLOYD: If you can look at the last page of that, which is part of your passport, underneath your photograph is something which purports to be your signature. Is that your signature?---Yes, these are my signatures. These are my signatures. While I was in Pakistan I was using them because they were very long signatures, so when I came to Australia, I have been using same signatures which are a little bit short form.

HIS HONOUR: Is the Urdu that you have used in Pakistan the Urdu of the traditional script, or the Urdu of the Romanised script?---In a traditional way.

Show me exhibit R7. Yes, proceed.

MR LLOYD: I show the applicant another document. Now, this document is a letter dated 27 August 2002 from the Tribunal sent to your address in Griffith, inviting you to attend a hearing. Do you recall receiving that document?---Although this is my address, but I don’t remember receiving this letter.

Do you remember being invited to a hearing before the Tribunal?---I don’t remember clearly because I had provided address of my lawyer. It must have been sent to my lawyer also, but I don’t remember what I discussed with him.

I am sorry, I will just take that document back, your Honour. I do not think the applicant has identified it. Show that to the witness. Is that your signature on that document?---Yes.

I tender that document.

HIS HONOUR: Identify the document.

MR LLOYD: That is a communication received by the Tribunal on 2 September 2002, dated 30 August 2002, notifying of a change of address.

HIS HONOUR: I mark that exhibit exhibit R8.

EXHIBIT R8: Notification of change of address dated 30 August 2002

MR LLOYD: I show the applicant a further document. Is that your signature at the bottom of that page?---Yes.

I tender that document. That is a document which was received by the Tribunal on 11 September entitled “RESPONSE TO HEARING INVITATION”, which indicates that the applicant chose not to attend the hearing before the Tribunal by answering block one.

HIS HONOUR: I mark that exhibit exhibit R9.

EXHIBIT R9: Response to Hearing Invitation received on
11 September 2002

HIS HONOUR: Just show that exhibit, exhibit R9, to the applicant again and please direct his attention to the tick he put in the box for No 1, “DO YOU WANT TO COME TO A HEARING?” and he ticked the box that said “NO”. Do you see that?---Yes.

Yes, very well. Hand back the document.

MR LLOYD: I show the applicant another document. Can you indicate to the Court what that document is?---It’s a photocopy of my passport.

On the second page – can you indicate whether or not that is your signature on the second page of that passport?---Yes.

I tender that document, your Honour.

HIS HONOUR: I mark that document exhibit R10.

EXHIBIT R10: Photocopy of applicant’s passport

MR LLOYD: Would you agree with me that that signature is different to the signature which is in all of the other documents which you have seen so far?---Yes.

In this signature, although it is not particularly clear, you appear to spell your name with..... Is that how you used to spell your name?---Previously I was writing it differently, but when I came to Australia, I came to know that.....should be spelt with..... That is why I was using.....

I would suggest to you that this signature on this passport has a different spelling of your name to the signature on the other passport which has been in evidence. Would you agree with that?---I can’t say anything about spelling, but I would say that previously my signature was too long because I was writing as....., so when there are lots of documents to be signed, I chose to abbreviate my signature.

You told the Court earlier today that you agreed with me that your affidavit gave the impression that you had no involvement with the Tribunal and you gave evidence that you had no involvement with the Tribunal, but that is not true, is it?---Yes, it’s correct.

It is correct that you had no involvement or it is correct that what you said was not true?---I tell you two times not in a mental state now to tell you exactly, because at that time I was dealing through my lawyer and mostly I was working in the farms. Sometimes I used to contact with him, sometimes I was not able to contact him, so I can’t say clearly.

I would like to show you another letter. This is a letter of the Tribunal sent to a post office box address you had provided to the Tribunal just 19 days earlier by registered post, inviting you to attend the handing down of the Tribunal’s decision. Did you receive that?---I have left all the letters to my lawyer. Whatever he is doing, I trust him. Because I cannot read, all these letters look similar to me, so I can’t differentiate what letter it is.

But do you accept that you might have received that letter?---Yes, maybe.

I tender that document, your Honour.

HIS HONOUR: Mark that exhibit R11.

EXHIBIT R11: Letter from the Refugee Review Tribunal inviting the
applicant to attend the handing down of the Tribunal’s
decision

MR LLOYD: I show you one further document. This is a letter dated 22 October 2002, sent to your same address, PO Box 991 in Griffith, by registered post, which attached a copy of the Tribunal’s decision and reasons. Did you receive that letter?---Yes, could be.

I tender that letter too, your Honour.

HIS HONOUR: Identify this letter.

MR LLOYD: This is a letter dated 22 October from the Refugee Review Tribunal to the applicant, enclosing a copy of the Tribunal’s decision and reasons.

HIS HONOUR: I mark that exhibit R12.

EXHIBIT R12: Letter from the Refugee Review Tribunal to the
applicant dated 22 October 2002 enclosing a copy of
the Tribunal’s decision and reasons

MR LLOYD: Do you accept that you would have received that towards the end of October 2002?---Yes, perhaps I could have received it, but I can’t say definitely.

I have nothing further, your Honour.

HIS HONOUR: Are there any matters on any of the documents that you have been given – and I will hand you all of the exhibits which have been tendered by the respondent – that you wish to say to me in explanation of any of those documents? Hand the witness exhibits R1 to R12?---While I look at the documents, I can’t say what are all these documents because I can’t differentiate them, but I only want to request that I should be allowed to stay here, I would be thankful to you.

The first problem you have is that you are well outside the time for beginning proceedings in this Court. There is a delay between October 2002 and March 2004. Unless you overcome that difficulty, on one view the Court does not have to even consider your claim, because you are so far out of time for commencing the proceedings. Is there anything you wish to say in relation to the suggestion that you were notified of the obligation to proceed within strict time limits to bring these proceedings much earlier than you did?---My weakness is that I am not educated. If I would have been educated, I would have made all those contacts through Internet also, but my problem is that I have not been aware of these things.

Yes, very well. Hand back exhibits R1 to R12. Are there any questions arising out of those questions on my part?

MR LLOYD: No there is not, your Honour, no.

HIS HONOUR: Is that the examination of the applicant?

MR LLOYD: Yes, your Honour.

HIS HONOUR: The applicant may stand down and go back to the Bar table.

THE WITNESS WITHDREW

HIS HONOUR: Hand back the original of the document which is the applicant’s affidavit. I will give the copy of the applicant’s affidavit which was given to me by Mr Lloyd to the applicant. Is there any evidence that the respondent wishes to call in the application?

MR LLOYD: No, your Honour.

HIS HONOUR: Apart from the documents which you have tendered?

MR LLOYD: That is so.

HIS HONOUR: Very well, would you explain, Mr Interpreter, that the applicant now has a chance to address the Court and say why the Court should provide the order nisi which he has asked. I know that it is difficult for him, because he is not legally trained or, he says, educated, but this is the chance that he has, so anything he wishes to say that is relevant, I will listen to. Have a drink of water and stand up at the microphone and say anything you wish to say.

APPLICANT S59/2004 (through interpreter): I only want to request your Worship to consider my case so that I could stay here. Other than that, I do not want to say anything.

HIS HONOUR: Well, I know that, but he has to speak to me from the microphone. He cannot do so sitting down at the Bar table. Perhaps you might stand beside him, if you would.

APPLICANT S59/2004 (through interpreter): I request your Worship to consider my case because I want to stay in this country and I have been dealing through my lawyer only with this aim, that I want to stay in this country.

HIS HONOUR: Well, perhaps if I had the power, I would allow him to stay in the country, but I am a judge and have to comply with the law. Under the law of this country, the decisions on these matters rest in the first instance with the Minister or his delegate and, on review, the Tribunal. That is where the merits of applications have to be dealt with. This Court can only deal with legal mistakes or procedural unfairness that happens in the Tribunal. It is not another chance to have a hearing on the merits of the case.

The applicant had the chance to address the merits of the case before the Tribunal and he ticked the box saying he did not wish to attend. He has now come to the highest court in this country and he cannot expect me to give him a hearing that belongs to the Tribunal. That is not my function. I know these things are complicated and worrying, but that is the law of Australia and I have to comply with it. Is there anything he wants to say in response to those points that I have made to him?

APPLICANT S59/2004 (through interpreter): I would request you kindly to consider my case and what I want is in your power, you do for me.

HIS HONOUR: Is there anything else that he wishes to say? He realises that I have before me the decision of the Tribunal in his case? Has he had the reasons of the Tribunal explained to him and does he wish to say anything about the decision of the Tribunal?

APPLICANT S59/2004 (through interpreter): I do not remember all these things. It happened before two years so, because of little attention, I do not remember things on..... This thing happened two years before.

HIS HONOUR: Yes, very well. You may sit down. What do you wish to say, Mr Lloyd?

MR LLOYD: Your Honour, in relation to the question of delay, the applicant’s affidavit sought to excuse the delay on the basis that he had only recently learnt about the decision. In my submission, in cross-examination, the applicant revealed that he did not have immediate knowledge of what was in his affidavit. It was communicated to him through someone who apparently was not an official interpreter, but a friend, who told him what he had put in it. In cross-examination, the applicant accepted that he wanted to give the impression that he had not had any real involvement with the Tribunal - - -

HIS HONOUR: Just let me interrupt you. Would you explain the substance of what counsel is saying to me, so that the applicant will have a general idea of what is being said to the Court? I address those remarks to the interpreter. What is the time for commencing proceedings in the Court, exactly?

MR LLOYD: For mandamus it is two months; for certiorari it is six months. So the applicant gave the impression of little or no involvement with the Tribunal when, in fact, the evidence reveals that he had repeated communications, including an FOI request and a request for a report on the status of his application. He also accepted that he did receive a notification of the handing down of the decision, including the covering letter which indicated that there were time limits. In my submission, the applicant has not provided any real justification for an enlargement of time.

HIS HONOUR: I understand those submissions, but when I was a little boy I had a relative who, whenever he received a bill, would put it in the sideboard drawer, and there are people who, faced with serious predicaments, sometimes just do not face up to them, and I feel a little inclined to deal with the substance of matters rather than to give a procedural knock-out on the basis of time, if one can. I take the force of the points that you make, especially in this case, of the very great delays, but we are dealing with a person who says he is not educated, who is living in Griffith, who is working on farms, who is reliant on other people, and I would prefer to deal with the substance of the matter, if the matter can be dealt with on that basis, as at the moment I am inclined to think it can.

MR LLOYD: Well, in relation to the substance, the applicant – my written submissions deal with two things. One is perhaps another procedural matter, that the form of the order nisi has flaws – perhaps I will just rely on my written submissions in relation to that because that can be corrected. In relation to the substance, the applicant - - -

HIS HONOUR: I just do not see anything in the substance that suggests any jurisdictional or legal error on the part of the Tribunal.

MR LLOYD: Well, no, and certainly there is no evidence to support any - - -

HIS HONOUR: The only possible basis which could possibly suggest remitting the matter for exploration of the facts would be if it could be thought that in some way the applicant had misunderstood or had been misled into appreciating his rights to put his best foot forward before the Tribunal, but rather telling in that respect is the document which is exhibit R9, which shows that he ticked the box saying that he did not wish to come to a hearing, and signed that document in a series of communications where he was taking pains to notify the Tribunal of his address.

MR LLOYD: There certainly is evidence that that is upon the advice of his migration agent. One may accept that that is appallingly bad advice, but it does not reveal any jurisdictional error by the Tribunal. It can only deal with what it can deal with. If the applicant does not want a hearing to give evidence and make arguments - - -

HIS HONOUR: Would you explain this to me, which I do not quite understand. Why is the applicant at liberty, whereas, say the children that the High Court has dealt with in recent cases remain in mandatory detention? Is that because the Minister in the applicant’s case saw fit to give him a bridging visa of some kind, or what is the – I thought the policy was one of virtually uniform mandatory detention, but that obviously is not so.

MR LLOYD: No. In fact, it is more exceptional than general that people are in detention. My understanding is that, if one enters Australia lawfully, one then becomes what is called “immigration cleared”. You are then eligible for a range of bridging visas if you are seeking judicial review of decisions and so forth. If, however, you come, as it were, on a boat or any other way – if you had come on a plane but not be immigration cleared because you have no passport, or such like, then those people are - - -

HIS HONOUR: So the diffence is the applicant arrived with a visa and was allowed into Australia - - -

MR LLOYD: Indeed.

HIS HONOUR: - - - whereas in the other cases, they do not. That rather makes it look as if the mandatory detention is in the nature of a sanction. However, we will not go into that.

MR LLOYD: I certainly do not want to make any submissions about that, your Honour.

HIS HONOUR: That came up before parliamentary committees and that was suggested in the parliamentary committees. But, anyway, you have explained that to me. Thank you for doing that.

MR LLOYD: Your Honour, I am not sure that I have anything further.

HIS HONOUR: Does the applicant have anything to say in answer to what the lawyer for the Minister has put to me?

APPLICANT S59/2004 (through interpreter): I can put to you for whatever favour you will show me. I only want to say that I want your help and - - -

HIS HONOUR: The only favours I can show him are the favours that the law permits. I want him to be absolutely clear that I do not have a general discretion. In this country, the judges must apply the law. That is what the rule of law is about. I am now going to give my decision in the case and it will be typed up and supplied to the applicant within a couple of days. It will be in the English language, but if he has difficulties in understanding it, the Registry will make arrangements for you to explain it to him and I would ask you, Mr Interpreter, to tell the applicant, either as I give the decision or later, the substance of the decision.

APPLICANT S59/2004 (through interpreter): I would like it to be translated to me later on, at the end. I would like it to be interpreted to me at the end, when you have finished giving your - - -

HIS HONOUR: Yes, very well. Well, you can translate the substance of it and subsequently, when it is typed, if need be, you can help the applicant to understand what I am saying.

APPLICANT S59/2004 (through interpreter): Okay.

HIS HONOUR: I have before me an application for an order nisi for the writs of mandamus and certiorari.

The facts

The applicant is a national of Pakistan. He arrived in Australia on 2 January 2000. He arrived with a visa and was admitted to the country. A fortnight later he applied for a protection visa under the Migration Act 1958 (Cth) (“the Act”). He claimed refugee status. His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs, as that office was then described. He sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”).

On 18 February 2000 the Tribunal refused the applicant’s request for a visa. He now applies to this Court for relief under s 75 of the Constitution. He has named the Minister for Immigration and Multicultural and Indigenous Affairs as the first respondent and Mr Luke Hardy, in his capacity as a member of the Tribunal, as the second respondent. Mr Hardy is not the proper respondent, which is the Tribunal. However, I will assume that that error could be cured by amendment of the record. The second respondent submits to the orders of this Court. The Minister contests the applicant’s claim.

In support of his application the applicant has sworn an affidavit which has been read. It deposes that, in Pakistan, the applicant was a member of Sipah-e-Sahaba Pakistan (“SSP”). This is said to be a religious Sunni-based organisation which the applicant claims is peaceful. The Sunnis are part of the body of the believers of the religion of Islam. The applicant claims to have been involved in a peaceful wing of SSP which represents the Sunni sect and demonstrates for the rights of Sunnis in Pakistan. The applicant claims to be persecuted by an opposition party, Tehreek Nafaz-e-Fiqh-e-Jafariya (“TNFJ”). This is a religious organisation of Shi’a followers of Islam. The Shi’a are the other main branch of the body of Islam. The applicant claims to have been told that he will be killed by TNFJ and that it was this threat that caused him to leave Pakistan.

The decision of the Tribunal

Unfortunately, the applicant, who did not appear at the Tribunal hearing, was not believed by the Tribunal on his claims. The Tribunal reached its conclusions on the basis of: (1) the incongruous silence on the part of the applicant in failing to attend the hearing of the Tribunal despite asserting a claim for an inability to obtain State protection from his country of nationality, Pakistan; (2) the fact that following the applicant’s departure from Pakistan to the United Arab Emirates, he had twice thereafter returned to Pakistan, apparently freely and without any established ill-consequences; (3) the country information concerning the state of inter-sectarian conflict within Islam in Pakistan; (4) the country information concerning the alleged militant character of SSP; and (5) the rejection of the possibility that the applicant might have been downplaying his involvement with SSP for the purposes of the application although it provided a real foundation for his claim to refugee status.

The decision of the Tribunal, whilst brief, is adequate and convincing. The applicant did not claim judicial review in the Federal Court of Australia. He came directly to this Court, seeking from me an order nisi for the constitutional writ of mandamus and for a writ of certiorari to quash the Tribunal’s decision affecting him and to compel Mr Hardy to reconstitute the Tribunal to rehear his case.

The applicant needs a substantial extension of time for the commencement of his proceedings. The Tribunal decision was sent to the applicant, at his postal address by registered post on 22 October 2002. The application was not lodged in this Court until 1 March 2004. Under the Rules of the Court applications for mandamus must be brought within two months of the relevant decision; applications for certiorari must be brought within six months.

It is not Mr Hardy’s function under the Act, or otherwise, to constitute the Tribunal afresh. However, I will assume that this procedural misapprehension could also be cured by an appropriate amendment of the record. There is really no evidence before me to warrant an extension of time. However, the applicant, who says he is not educated and has been working on farms in the Griffith area, might, with more time and understanding, be able to explain the very lengthy delay between the relevant decision and the commencement of proceedings in this Court. For the moment, with much hesitation, I will therefore assume that the problem of time could be corrected. I will address the substance of the claim.

The basis and grounds for constitutional relief

Constitutional relief should be granted and the jurisdiction and powers of the Court engaged, relevantly, if a reasonably arguable case is propounded to show that jurisdictional error has occurred on the part of an officer of the Commonwealth or some other legal error warranting the issue of a constitutional writ. Such error would be shown, for example, if the applicant could establish a reasonably arguable claim that he had suffered from a breach of the rules of procedural fairness (natural justice) in the hearing before the Tribunal, warranting the issue of relief against the Minister or some other officer of the Commonwealth.

The propounded foundation for the claim is, first, that the Tribunal did not make a bona fide attempt to exercise its power. On the record, there is no substance in this assertion. On its face, the Tribunal’s reasons are convincing and they are not displaced by anything placed before me today.

Secondly, the applicant contests the conclusion of the Tribunal that the SSP is a militant organisation. If that be a factual error, a matter which I cannot decide, it is one which occurred within the exercise of the jurisdiction of the Tribunal. It does not provide a foundation for constitutional relief from this Court.

Thirdly, the applicant complains that the Tribunal was not aware of the cultural background of young people in Pakistan and the true nature of sectarian conflict there. This might or might not be so. Certainly it is difficult for officials in one country fully to understand bitter and ancient disputes in another which in many ways is a different society. But if there is error, once again it does not constitute a departure from, rejection or excess of, jurisdiction on the part of the Tribunal. It would be an error within jurisdiction.

Fourthly, various administrative law errors are propounded, including lack of reasonableness, constructive failure to exercise jurisdiction, denial of natural justice and the failure to consider the Refugees Convention as explained by this Court in its earlier decisions. On the record before me, I see no merit in any of these claims. No foundation has been laid to suggest a reasonably arguable basis for this Court to grant constitutional relief directed to the named respondents or the parties who might be substituted. Nor has any basis been established to suggest that the matter should be remitted to Federal Court, if that be proper, for the purpose of determining factual or other contests.

In his affidavit the applicant claimed that he was misled by a migration agent. Whether this was so or not, it is the Tribunal which has the responsibility under the Act of considering the applicant’s claim for a protection visa on the merits. The Tribunal acts by a kind of inquisitorial procedure. It was in the Tribunal that the applicant was given the chance by Australian law to put his best case supporting his claim.

Deliberate failure to attend the Tribunal hearing

Evidence before me establishes that the applicant was given proper notice of the hearing of his claim before the Tribunal. Indeed, the applicant had been very careful to signify changes of his address to the Tribunal, presumably so that he might be given such notification. A document was tendered and received in evidence in which the applicant ticked a box indicating that he did not wish to attend the hearing before the Tribunal. He signed that document. I drew the document to his specific attention. The applicant agreed that the document bore his signature – exhibit R9. The signature indicates that the applicant adopted the document. Another document shows that the applicant received notice of the handing down of the decision of the Tribunal on 22 October 2002 – exhibit R11. Another document still, bearing that date – exhibit R12 – notified the applicant of the delivery and outcome of the decision and of the strict time limits for bringing proceedings before the courts.

If the applicant had difficulties with his agents and the evidence, it was in the Tribunal, primarily, that the applicant had the opportunity under our law to say so. Allowing fully for the dislocation suffered by many people seeking protection visas, such as the applicant, it would be destructive of the scheme established by the Parliament under the Act to allow an applicant to exercise rights before the Tribunal and then, disappointed by the outcome, to seek a second hearing because of claimed difficulties with a migration agent of the kind alleged here. Instead of asserting the bases for his alleged fear and difficulties before the Tribunal, the applicant was incongruously silent. In these circumstances, he cannot now complain before this Court that his claim was not accepted by the Tribunal.

Conclusion and orders

No reasonably arguable basis being established for the issue of an order nisi for constitutional and associated relief, the application must be dismissed. The applicant must pay the Minister’s costs. I certify for the attendance in Chambers of counsel for the Minister.

Mr Interpreter, would you explain to the applicant that I have refused his application for the reasons that I have given? Those reasons will be typed up within a few days and they will be posted to the address which he leaves with the Registry. The Court will now adjourn.

AT 10.52 AM THE MATTER WAS CONCLUDED