MZXLD v Minister for Immigration and Citizenship & Anor [2009] HCATrans 282 (23 October 2009)

Last Updated: 2 November 2009

[2009] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M42 of 2009

B e t w e e n -

MZXLD

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 OCTOBER 2009, AT 9.28 AM

Copyright in the High Court of Australia

MR. A.F.L. KROHN: May it please the Court, I appear for the plaintiff. (instructed by Long Lawyers)

MR R.C. KNOWLES: Your Honour, if it pleases the Court, I appear for the first defendant. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, Mr Krohn.

MR KROHN: Thank you, your Honour.

HER HONOUR: You can assume I have read your written submissions and also the written submissions in reply.

MR KROHN: Thank you for that indication, your Honour. Then, your Honour, it may be possible for me to be relatively brief subject to any indication from your Honour about points that require clarification. This application takes as its starting point the Tribunal having made inquiries, or having caused inquiries to be made by the Department of Foreign Affairs and Trade in Sri Lanka concerning a particular associate of the plaintiff. I perhaps do not need to take your Honour to the report that was compiled, but it was attachment A to one of the affidavits of the plaintiff.

HER HONOUR: Yes, I have seen that and I have seen the incorporation of the extracts from the DFAT report.

MR KROHN: Thank you, your Honour. You would have seen then the repeated naming of the particular associate and, indeed, the questions which the Tribunal sent and asked the Department of Foreign Affairs and Trade to find out about were almost entirely directed explicitly to the activities or involvement of that person. That person’s name was published on the website. So the report was published on the website and your Honour will see also from that attachment that at least it bears MRT/RRT identification and I do not understand that it is disputed that that website and publication were either of the Tribunal or at least under the Tribunal’s control.

HER HONOUR: Were submissions made in respect of that report when an opportunity was given to comment on the document which incorporates extracts?

MR KROHN: I do not recall that, your Honour. I will need to check that. I can address your Honour on that in a moment.

HER HONOUR: My understanding is that no intimation was given about any problem with this.

MR KROHN: No. The Tribunal, it is fair to say, in its reasons – which are exhibit WA 1 to the first affidavit, the affidavit of 7 May this year – that the Tribunal by and large rejected the plaintiff’s claims to have been involved with that person and the Tribunal by and large rejected the claim of the plaintiff to have been involved in any particular small group as he had claimed in his application to the Tribunal. But the Tribunal did accept, at page 44 of its decision at about point 7 of the page - - -

HER HONOUR: Just give me a moment. Yes, I have that now.

MR KROHN: Thank you. Page 44 at about point 7 on the page:

As noted in the hearing, the Tribunal accepts [this person] exists and he may have been involved in setting up some secret office to investigate the activities of the Presidential Security Division but it does not accept this information supports the applicant’s claims [this person] was a confidante of the former President. Nor does it accept [this person’s] involvement in what is termed the Channel Nine conspiracy is also evidence of any close relationship between him and the former President.

So the Tribunal accepted the existence of that person and accepted that he may at least at some level have had some occult involvement in Sri Lankan politics, though it would seem the Tribunal did not accept to the extent that the plaintiff claimed.

So the Tribunal made those inquiries and the report has been published. Your Honour will have seen from the submissions and the evidence that the plaintiff did not become aware of the publication of the report until after the Tribunal decision and the plaintiff did not receive threats, or was not aware of those threats, against his life on the basis of that report until about June of this year. Your Honour will find that in the most recent affidavit of the plaintiff filed 21 October 2009. At paragraph 8 of that affidavit the plaintiff says:

In early to mid 2008, I became aware of the DFAT Report . . . My migration agent, in preparing the section 417 submission to the Minister, discovered the DFAT report on the internet.

HER HONOUR: Does that mean that the plaintiff – as I understood the facts, the plaintiff was given an opportunity to comment on the material – section 424A opportunity. So that cannot be quite right, can it?

MR KROHN: No, that paragraph should be, “Become aware of the report on the internet”. I do not rely on it for any higher proposition than that, your Honour.

HER HONOUR: Yes. So that is just meant to be evidence in relation to first becoming aware of the report on the internet.

MR KROHN: Yes, your Honour. Put briefly, the grounds which it is said are arguable and the reason for the grant of an order to show cause are that by having those inquiries made and then having or allowing the report to be published on the internet with the name of that person involved, that has had the effect – I will take your Honour further to other paragraphs of that most recent affidavit – that the applicant deposes to receiving threats against his life. So, in effect, the Tribunal by its actions or at least by its lack of proper oversight, has put the applicant in a position of risk and harm and, indeed, in a position of being, as the plaintiff believes, a person who faces a risk of persecution should he return. In other words, it is submitted that it is arguable at least that the Tribunal has caused the plaintiff to become a refugee. It has, in other words, caused the plaintiff to be at risk of precisely that harm from which the Tribunal exists to protect applicants before it.

Now, it may be accepted, your Honour, that it is not a common thing to argue as a ground for relief against a decision of the Tribunal to rely upon something which has occurred or has continued to develop since the decision of the Tribunal. It may be accepted that that is not the usual situation, but neither, your Honour, does one presume is it a usual situation for the Tribunal to be publishing, with names, this kind of information. The way in which it is said that it is a proper basis, a proper ground for the plaintiff to seek relief before this Court is in two ways.

The first ground is that when the Tribunal makes a decision affirming a decision of the Minister’s delegate to refuse a protection visa, because of the regime under the Act and specifically because of section 48A of the Migration Act 1958, because of that decision, the plaintiff is precluded from making a further application for a protection visa. The ground the plaintiff seeks to argue is that if the Tribunal acts in such a way as to cause the plaintiff to be at risk of harm as a refugee within the meaning of the Refugees Convention or, in the alternate, simply to be at risk of harm at all, then the Tribunal has acted contrary to its task and jurisdiction and that its decision, even if previously made, is a bar to the plaintiff seeking the protection which Australia has undertaken as a party to the Refugees Convention to provide and which it has incorporated by reference in domestic law in section 36 of the Migration Act.

So put simply, your Honour, the first of the grounds which it is submitted is an arguable ground for relief, and at the moment I am leaving aside the question of enlargement of time, but the first ground is that if the Tribunal acts in such, if I may say, a spectacular way as to publish information involving personal names of somebody who was claimed to be an associate of the plaintiff on the internet, then in that unusual situation the Tribunal’s action is such that the decision made by the Tribunal has become part of a situation of risk and harm to the plaintiff and it is therefore appropriate for the Court to grant relief and the nature of the relief would be certiorari to quash the decision and mandamus to require the Tribunal further to consider the matter according to law.

Now, in that situation, the Court would be sending back the factual decision-making task to the Tribunal, but the Tribunal would then, because it is not precluded by an existing decision, be able to accept this new material and evidence from the applicant and could evaluate it for what it is worth and decide that it does or does not accept its truth and it does or does not accept that it poses a harm to the applicant such as to make him a refugee. So it may be accepted, your Honour, that this ground is not one of the usual grounds urged for setting aside a decision of the Tribunal, but, in my submission, it is an arguable ground and, indeed, given the responsibilities of the Tribunal, in my submission, it is a proper and, indeed, an important ground for the Court to consider and resolve.

The second ground which the plaintiff submits is arguable is, from a legal point of view, perhaps a simpler proposition and it is that the Tribunal has power under the Migration Act to makes inquiries. It has power to ask the Secretary of Foreign Affairs and Trade to make those inquiries, but if it does so and, most particularly, if it publishes or allows to be published the results of those inquiries, it is obliged to consider what may be the result for the plaintiff. That arises from the responsibility of the Tribunal itself so that it is not limited to a situation where the plaintiff says, “Look, I’m really edgy about that. I don’t want you to do that.” It is a general part of the Tribunal’s responsibility to act in such a way as not to put an applicant before it at a risk of harm and particularly at a risk of persecution.

The plaintiff’s argument relies – and your Honour will have seen in the written outline of submissions and the reply - your Honour will see the plaintiff’s argument relies, if you like, at the most specific level on section 431(2) of the Migration Act and your Honour will have seen that there is a dispute between the parties as to the proper construction of that section. That is the section concerning the publication of a statement. Your Honour will have seen that the Minister contends that in section 431(2) the word “statement” is to be construed as the statement referred to in section 431(1), that is, the statement of decision and reasons and findings under section 430 of the Act.

On that point, your Honour, the plaintiff submits that one is entitled to have regard to the plain meaning of the words. The plain meaning of the words in subsection (2) are not confined in the way that the Minister proposes and that if one has regard to at least the informing role of section 4, the object of the Act to act in the national interest, and section 420 for the Tribunal to act in a way that is fair and just, then there is the more reason to regard that prohibition in 431(2) as being unconfined.

Your Honour will have seen that the Minister in his submissions urges that since the judgment of this Court in Eshetu, it is not open to a plaintiff to found a claim of jurisdictional error upon section 420 of the Act. The plaintiff is not relying on section 420 as proposing, as it were, procedures as were considered in Eshetu under the then section 476 of the Migration Act, but section 420 does properly – and I have referred to a passage in one of the joint judgments in Eshetu in the outline – it can properly be used at least to inform the construction of other parts of the Act when it is urged that there has been a jurisdictional error for failure to comply with them.

The other specific provision on which the plaintiff relies is section 439 of the Act. Your Honour will have seen that, as I understand it, the Minister joins issue with that on the basis that, well, this was done in connection with or for the purpose of performing functions under the Act. In my submission, the making of inquiries in itself may well be something which falls within that definition, within the scope, say, of section 427 of the Act, or perhaps even under the more general scope of the Tribunal’s power to conduct a review.

The publication of identified or identifying material on the internet, in my submission, cannot be said to be something which is covered by the exemption clauses or the exception clause in section 439. For those reasons, your Honour, and they are put briefly, but they are put in addition to the submissions that your Honour has seen and read of the plaintiff and the submissions in reply, it is submitted that the plaintiff has an arguable case sufficient to justify and to require the grant of an order to show cause.

The other matter that the plaintiff needs to address, would have had to address in any event regardless of anything that the Minister had to say, is the issue of enlargement or extension of time. The plaintiff accepts that the amended version of section 486A of the Migration Act is the relevant provision which applies and which provided for a period, even though it is retrospective legislation because of its transitional provisions, but it provides that, in effect, the plaintiff had 35 days from the date of the decision, that is, 35 days from the date of 24 May 2006. In fact, he filed his application for an order to show cause in this Court on 7 May 2009. So without considering the context of those dates, one sees a bald interval of approximately a little under three years.

HER HONOUR: In relative terms that would be considered a very significant delay, Mr Krohn.

MR KROHN: It would indeed. I accept that, your Honour. But, in my submission, there are two broad categories of reason or argument why the real interval should be regarded as a much shorter one. The first is the plaintiff having promptly sought judicial review and pursued that - he sought judicial review in the Federal Magistrates Court promptly after the decision of the Tribunal. He then appealed to the Federal Court and then sought special leave to appeal to this Court and, if need be, I can take your Honour to the parts of the affidavits that set that out, but the special leave application was concluded in April 2008. I am indebted to my learned friend, 23 May 2008.

Then your Honour will see from the affidavit of 21 October that the plaintiff applied under section 417 of the Migration Act and that application has subsequently been declined by the Minister and he has now, since the declining of that request, filed the present application for an order to show cause.

HER HONOUR: That is right, filed this second application, because there has already been recourse to the judicial power of the Commonwealth.

MR KROHN: That is so, your Honour, and that raises, separately from the time issue, the question of Anshun estoppel or the other estoppel arguments put by the Minister. If I may perhaps just stay with the time issue for the moment. In the most recent affidavit your Honour will see, as I have already taken your Honour to, it was only this year that the plaintiff became aware of the threats to his life from the publication of the report.

HER HONOUR: Do I understand that what the narrative is is that Mr X, who is a friend, regularly rings the plaintiff. Mr X resides in Sri Lanka and Mr X has reported to the plaintiff that the associate referred to in the DFAT report is making threats against the plaintiff. Is that the sequence?

MR KROHN: I am sorry for the confusing letters, your Honour. A is the friend and X is the person who is named in the DFAT report.

HER HONOUR: Yes, I see.

MR KROHN: In paragraph 8 of the affidavit of 21 October - - -

HER HONOUR: This is - 8, 9 and 10 are the relevant parts?

MR KROHN: That is right, your Honour, yes.

HER HONOUR: So there is a friend A in Sri Lanka who has reported what he has heard from person X?

MR KROHN: That is right. And that A was one of the two people who came out to Australia with the plaintiff.

HER HONOUR: And has now gone back?

MR KROHN: And has now gone back. A, B and the plaintiff came out to Australia. They applied for protection visas. They were refused. A and B went back Sri Lanka. A has remained in contact with the plaintiff. B has disappeared. The disappearance of B is referred to and the plaintiff’s fear consequent upon that is referred to in paragraph 7 of that same affidavit, your Honour.

HER HONOUR: Is it the one instance that X spoke to A and said words to the effect, “I am not going to tolerate [the plaintiff]. I am going to kill [the plaintiff]”?

MR KROHN: No, it continues, your Honour. You will see in paragraph 12:

A and I last spoke on the telephone in the afternoon of 7 October 2009, when A called me to check on how my court case is progressing and the steps I am taking to lawfully remain in Australia.

HER HONOUR: Yes. That is not a reiteration of a threat though. That is just emphasising the seriousness of the case, as I understood it. I understood the threats were in paragraphs 9 and 10, that Mr X was wild with him because of the trouble he had caused and the only reported conversation, “I am not going to tolerate [the plaintiff]. I am going to kill [the plaintiff]”, that is the evidence.

MR KROHN: Yes.

HER HONOUR: Yes. Thank you.

MR KROHN: So for that reason, your Honour, it is submitted that there is an exceptional situation in relation to the application for extension of time. In fact, the two aspects of that exceptional situation are, first the bringing about of the risk of harm to the plaintiff by the Tribunal and the second is the time at which the plaintiff became aware of the threat caused by that publication. In those circumstances, your Honour, mindful of, it may be said, the vigorous and blunt presentation of principles by his Honour Justice McHugh in Marks’ Case and Gallo v Dawson, which both parties have referred to, but your Honour will be familiar with one of the things that his Honour considers hypothetically when he says that there would have to be something really exceptional for the Court to enlarge time by many months.

One of the things that he considers hypothetically is that delay be caused by the officer or the Tribunal concerned. Well, it may not be said that directly the delay has been caused by the officer or Tribunal concerned but the situation giving rise to the grounds sought to be argued is something that was consequent upon actions of the Tribunal.

So for that reason, your Honour, in my submission, even though in an ordinary case where there has been an application for judicial review pursued by the courts which has come to an end and then without anything else exceptional about it the plaintiff comes and wants to start again, even though in that situation one might readily understand why the Court would say, well, you have had your chance, that is it, in this case there are those exceptional circumstances.

The plaintiff could not have sought to bring his application at least earlier than he became aware of the publication of the internet report and that he has brought it promptly after the conclusion of his request to the Minister under section 417. I understand my learned friend may have something to say about that aspect of it, but insofar as the conduct of the plaintiff is a relevant matter, he has not been idle and, in my submission, there is nothing for which he is to be criticised in his conduct.

In relation to the estoppel issues, my learned friend, just before your Honour came onto the Bench this morning, was able to provide me with a copy of a direction that it seems the Federal Magistrates Court had made to the effect that the matter before the Federal Magistrates Court proceed as a final hearing. So on that basis, your Honour, that was something that I was not previously aware of. On that basis, I abandon the submission that, pursuant to the rules of the Federal Magistrates Court and the form of the application in that court, that it was an interlocutory order.

HER HONOUR: Yes, thank you.

MR KROHN: But nonetheless, your Honour, in my submission, the nature of that application as it proceeded before his Honour Federal Magistrate McInnis was one where what was agitated was denial of procedural fairness or a reasonable apprehension of bias. It was, in my submission, a completely different proceeding and, in my submission, not one which in its substance is the same as that sought to be argued here, perhaps especially because, if you like, one aspect of the error of the Tribunal justifying relief at least has developed since the Tribunal’s decision.

In my submission, in this case it is very clear there is no issue estoppel. There was no argument of this kind that was put before the Federal Magistrates Court. Her Honour Justice Gordon, as I understand it, considered only the ground of appeal of reasonable apprehension of bias. As to the Anshun estoppel point, in my submission, for the reasons outlined in the submissions and the reply, there are special circumstances, perhaps rather unusual special circumstances. The first of those is that even though technically it may have been open to argue a jurisdictional error, the plaintiff could hardly be expected to argue something of which he was not aware at the time he instituted his proceedings.

The second of the special circumstances, your Honour, is particularly the conduct of the Tribunal as giving rise to the grounds sought to be argued. The third is that in the affidavit material the plaintiff has deposed to the fact that he acted on legal advice. He was not aware until these present proceedings of the possibility of making an application upon the basis of complaint about the publication of the Foreign Affairs and Trade report.

Unless there is any point that your Honour desires me to elaborate or clarify, those are the submissions in support of the enlargement of time and for the Court to grant an order to show cause. I do not know whether your Honour desires me to say anything to you on the question of the remitter or possible remitter or to leave that?

HER HONOUR: No, we will leave that for the moment. I think it is accepted that this is the type of matter that is capable of remitter.

MR KROHN: It is capable of remitter, your Honour. There is no dispute, as I understand it, between the parties about that.

HER HONOUR: Yes, thank you.

MR KROHN: Unless your Honour desires me to clarify or elaborate any of those points, I rely on the written submissions and those submissions. May it please the Court.

HER HONOUR: Yes, thank you. I will just take a moment, Mr Knowles, to make a note. Yes, Mr Knowles.

MR KNOWLES: Thank you, your Honour.

HER HONOUR: First of all, what do you say about what is the main point of this case, which is that the plaintiff has had a conversation with A in Sri Lanka and A has reported certain things that have been said by X?

MR KNOWLES: The first thing I would say about that and other aspects of the affidavit material which either re-agitate previous claims made by the plaintiff to being a refugee or agitate new claims about that is that those were matters which were properly to be put before the Tribunal if they could have been at the time of the Tribunal’s decision and on that basis the first defendant objects to that evidence insofar as it does not, in the first defendant’s submission, have any relevance to any proper ground of judicial review. So in relation to that issue, there are a number of matters that need to be also borne in mind, in my submission.

In addition to that, the Tribunal made findings at the time about the person who is named in the report, made findings about the plaintiff’s connection with that person. The Tribunal was not satisfied that that person who was named in the report had political connections in Sri Lanka and was not satisfied that there had existed the particular intelligence unit which the plaintiff had claimed this person was the head of and was not satisfied that if the plaintiff returned to Sri Lanka that he would be someone who would suffer harm at the hands of this person who was named in the report.

Those findings dealt with these matters and dealt with the issues that now are sought to be re-agitated. If the plaintiff wanted to bring these matters somehow forward at this late stage, there are alternative mechanisms available under the Migration Act for that to properly occur.

HER HONOUR: And how does that occur?

MR KNOWLES: My learned friend referred to section 48A and suggested perhaps that it was a bar on further protection visa applications. That is so unless there is a decision made by the Minister under section 48B of the Migration Act which permits a person to make a second protection visa application.

HER HONOUR: So that is the correct route if this plaintiff wishes to have a second go?

MR KNOWLES: That is entirely correct, in my submission, your Honour, yes. Well, it is one of the correct routes, because there are others as well.

HER HONOUR: Yes.

MR KNOWLES: Such as, for example, the section 417 route. Now, there is no bar on a person making - - -

HER HONOUR: Making a second section 417 application.

MR KNOWLES: That is right. Having said that, it remains a matter entirely for the Minister as to whether or not that section 417 application will be considered at all or, if it is considered, accepted.

HER HONOUR: In relation to your objection to the affidavit, you are not asking me to exclude it, I take it?

MR KNOWLES: No, I am not, your Honour.

HER HONOUR: This is not that type of proceeding. You just want me to note, do you, your submission that it is not relevant to jurisdictional error?

MR KNOWLES: That is so, your Honour. It is really fresh evidence that goes to claims in respect of why it is said by the plaintiff that he is now a refugee. It needs, in my submission, to be borne in mind that the Tribunal made particular findings about these relevant issues. Perhaps if I can come to that in just a moment, your Honour.

My learned friend focused in his submissions on merely showing an arguable case. In my respectful submission, that is not all that is required. Obviously the plaintiff needs to satisfy your Honour that time should be extended by approximately two years and 10 months and even if time were to be extended, the plaintiff also needs to satisfy your Honour that no principles of preclusion apply and these matters both require the plaintiff to address issues beyond merely the merits of the present application, firstly, and, secondly, in respect of the merits, these matters require the plaintiff to show more, in my submission, than merely an arguable case. If this is, as my learned friend submits to your Honour, an exceptional case, it would need to demonstrate more than merely an arguable basis for it. Your Honour, I understand that there is a folder of authorities that has been filed with the Court. I do not know whether your Honour has a copy of that.

HER HONOUR: Yes, I do.

MR KNOWLES: I understand also that there may have been two copies of the folder that have been filed with the Court. The reason I raise that is that I have been instructed this morning that my learned friend has not received a copy of that folder at the present time and if it were possible, I would seek to have at least one of those copies provided to my learned friend for the course of the submissions that I intend to make.

HER HONOUR: It should be possible. Yes. I will ask my associate to look after that.

MR KNOWLES: Thank you, your Honour. Your Honour, there is one matter that I do need to bring to your Honour’s attention and I am indebted to my instructor in this regard. It concerns section 486A and it concerns the issue of the length of delay that arises in this case. I just submitted a moment ago - - -

HER HONOUR: I think in the supporting affidavit of Mr Brown, paragraph 17 it was said that, “This application” – that is to say, this application for an order to show cause – “was filed approximately 2 years and 11 months after the RRT decision”. I think Mr Krohn today described the delay as just under three years.

MR KNOWLES: Yes, your Honour. I think I mentioned two years and 10 months approximately, perhaps erring on the side of caution.

HER HONOUR: Is there any debate, Mr Krohn, that it is approximately two years and 11 months?

MR KROHN: No, your Honour. The date by which application should have been made was 28 June 2006 under section 486A.

HER HONOUR: Yes. Well, is the arithmetic of Mr Brown right?

MR KROHN: Well, between two and 10 and two and 11 months.

HER HONOUR: Approximately two years, 10 months would be correct.

MR KROHN: Yes, your Honour.

HER HONOUR: Yes, thank you, Mr Knowles.

MR KNOWLES: There was just a complicating factor in relation to that issue. It would appear that there is no dispute about the amount of time that has passed since the relevant decision of the Tribunal to the time of making the application before this Court in this proceeding. I just wish to bring to your Honour’s attention that in relation to section 486A there are transitional provisions in the amending Act which is the Migration Legislation Amendment Act (No 1) 2009.

HER HONOUR: Where are you going with this? Are you heading in the direction that section 486A applies to this application?

MR KNOWLES: I am, your Honour.

HER HONOUR: Yes. I think there is no debate about that either.

MR KNOWLES: No, your Honour. There is just one other factor. It is just in relation to the length of the delay as formally determined pursuant to these transitional provisions. As I say, there is no dispute about the factual position, but in terms of the legal position, the transitional - - -

HER HONOUR: This is to do with how you calculate it, is it?

MR KNOWLES: It is, your Honour, and item 7 in Schedule 2 to that amending Act has two paragraphs. The first relates to the issue that your Honour just mentioned that it applies. The second says:

If the application [to this Court] relates to a migration decision made before the commencement of this Schedule, for the purposes of applying sections 477, 477A and 486A of the Migration Act 1958, treat the date of the migration decision as the date of that commencement.

As I understand that provision, what it means is the date of the migration decision is, for the purposes of this Act - - -

HER HONOUR: Made at a later date.

MR KNOWLES: - - - the date of the commencement of these - - -

HER HONOUR: What is that date?

MR KNOWLES: That was 15 March 2009, your Honour. So it does not change the position in terms of the present - - -

HER HONOUR: The raw number of months.

MR KNOWLES: - - - application being out of time and there needing to be an application to extend time.

HER HONOUR: But it makes it two months out of time instead of two years and 11 months or two years and 10 months?

MR KNOWLES: Yes, your Honour. In that legal sense, it does, yes. I just raise that because that is something that has been brought to my attention and I think it arguably may be relevant to my learned friend’s submissions. In my submission, it does not change the position in this case because, irrespective of the length of the delay, there are other matters that go to why no extension of time ought to be granted in this case.

HER HONOUR: Just give me the amending legislation title again.

MR KNOWLES: Yes, your Honour. It is the Migration Legislation Amendment Act (No 1) 2009. That was Act No 10 of 2009.

HER HONOUR: Yes, and item 7, Schedule 2?

MR KNOWLES: Item 7 in Schedule 2 was the relevant item.

HER HONOUR: It provided that for the purposes of section 486A, inter alia - - -

MR KNOWLES: I can hand up a copy if it would assist your Honour.

HER HONOUR: Yes, that would be helpful.

MR KNOWLES: I am sorry not to have done so earlier.

HER HONOUR: Thank you. I will just take a moment. Yes.

MR KNOWLES: In relation to the Tribunal’s decision, your Honour, if I can turn to that. As your Honour is aware, essentially the plaintiff’s claims were that due to his support and involvement with the Sri Lankan Freedom Party he faced a real chance of persecution from political opponents if he was to return to Sri Lanka. He claimed that he had been involved with an intelligence unit within that party and he claimed that after he left the unit its leader had threatened him. Now, your Honour asked my learned friend about the section 424A letter and whether or not the adverse information that was put to the plaintiff in that letter included the DFAT report. If your Honour has a copy of the Tribunal’s decision to hand, and this was exhibited to Mr Brown’s affidavit as the first exhibit, your Honour.

HER HONOUR: Yes, I do have it, thank you very much.

MR KNOWLES: The 424A letter is set out in some detail at pages 27 through to 29. Your Honour will see about halfway down page 27 the Tribunal actually attached a copy of the DFAT report to that correspondence.

HER HONOUR: Yes, I see that.

MR KNOWLES: The Tribunal indicated to the plaintiff why the correspondence was relevant to its review and asked for the plaintiff to provide a response in relation to the DFAT report. The response was forthcoming and your Honour will see the response commences at page 29 of the Tribunal’s decision and is set out again in some detail through to page 33 of the Tribunal’s decision. Your Honour will see particularly on page 32 from the paragraph around line 30 in the middle of the page through to the next paragraph there are submissions made by the plaintiff’s representative in the response about the DFAT report and the weight that should be given to its contents.

HER HONOUR: Yes.

MR KNOWLES: Other than that, though, it is my submission that the response did not raise any issue about any perceived harm that might arise in respect of the inquiries being made about the person who is named in the report. Now, in terms of the Tribunal’s actual findings, your Honour, the Tribunal considered the evidence in some detail, but if I can move towards the end of the Tribunal’s decision and particularly page 49, what one finds there is the conclusory findings and at the bottom of page 49 your Honour will see that the Tribunal found that the plaintiff:

was nothing more than an ordinary member of the SLFP who was active in supporting his party, particularly during election time.

Then also on page 49 the Tribunal found that it did:

not accept he was a member of any special group within the SLFP.

That appears immediately after the finding to which I have just referred to. In that regard, your Honour, the way that this case proceeds before your Honour and the way it is put by my learned friend before your Honour simply ignores that factual finding made by the Tribunal, in my submission. It proceeds on the basis as if they were never made. In that regard, the plaintiff’s case in this Court, in my submission, essentially goes to the merits of the Tribunal’s decision. Your Honour will see also, just turning over the page to page 50 that the Tribunal did:

not accept he was of interest prior to his departure from Sri Lanka to the UNP . . . not accept if the [plaintiff] returned to Sri Lanka and resumed his active support of the SLFP he would face a real chance of persecution from the UNP or any other political party or group –

Again, in my submission, the way that this case is presented before your Honour simply proceeds as if those findings were never made. If your Honour goes back to page 49 and the last complete paragraph on that page, your Honour will see that the Tribunal did not accept that the plaintiff had been threatened by the person whom the plaintiff claimed was the head of an intelligence unit within the Sri Lankan Freedom Party. As I have already indicated, the Tribunal did not accept that such a unit existed.

The Tribunal did not accept the plaintiff’s claims that rival factions of that party had been targeting each other and nor did the Tribunal accept that the person who was named in the report had connections to present or past presidents of Sri Lanka. Again, in my submission, the way that this case proceeds before your Honour simply ignores those factual findings made by the Tribunal. The Tribunal also found further down in that same paragraph to which I most recently referred that it did not:

accept if the [plaintiff] returned to Sri Lanka he would face a real chance of persecution either from –

the person who he claimed headed the relevant unit and, importantly, it said he would not face a real chance of persecution from that person or the president – this is at the end of that paragraph on page 49, your Honour:

because of his continued support for the former President or for any other Convention reason.

Again, the way that this case proceeds before your Honour is as if that finding about the lack of a Convention nexus was simply never made.

Now, in relation to the grounds that are advanced, as would appear from the oral submissions that are made before your Honour today, the principal relief that is sought by the plaintiff relates to setting aside the Tribunal’s decision and remitting the matter back to the Tribunal for further consideration. In respect of that relief, it is my submission that what the plaintiff needs to show is that there was jurisdictional error affecting the Tribunal’s decision. So there might be some error pointed out – that is not conceded, I should add – but there might be some error but it has to be an error that somehow affected the Tribunal’s exercise of jurisdiction - - -

HER HONOUR: You certainly emphasise that in your written submissions.

MR KNOWLES: Yes. I will not perhaps labour that any further, your Honour. In relation to the grounds that are now brought, they principally relate to the publication of this DFAT report on the internet and the subsequent awareness of the report by the person or a person who is named in it. There is no indication that there was any evidence before the Tribunal about these matters at the time of its decision. All the evidence before this Court points to those events having occurred after the Tribunal had delivered its decision and, in my submission, was functus officio.

The plaintiff does not suggest in any of his evidence that prior to publication of the DFAT report on the internet the person named in it had any knowledge of the inquiries which led to the DFAT report or the Tribunal’s decision containing the reference to the DFAT report. Just on the point of the Tribunal’s decision, there is also no evidence before your Honour that the decision was ever published on the internet. I am instructed that the Tribunal decision is not located on the internet now and was not published on the internet previously simply because it was not regarded as a case that was suitable for public disclosure insofar as its significance.

There is also no evidence before your Honour to indicate that at the time of the Tribunal making its decision the DFAT report had been published on the internet. The plaintiff first became aware of it, according to his affidavit material, in 2008. I think it is said to be early to mid-2008 in paragraph 8 of the fourth affidavit filed by the plaintiff. The plaintiff appears to claim that the person who is named in the report only became aware of it in recent times. There is a reference to June 2009, your Honour, in the fourth affidavit that I have just referred to, I think in paragraphs 9 and 10.

There are also references throughout the affidavit material, whether it be the plaintiff or a friend of the plaintiff, which refers to these events having occurred now, which, in my submission, your Honour can infer reasonably means that these things have only, if they have come to light, come to light recently.

HER HONOUR: Even after this second application for an order to show cause?

MR KNOWLES: In my submission, in respect of publication, no, your Honour, but in relation to the alleged threats, yes, that would appear to be the case.

HER HONOUR: Yes, that is what I am referring to.

MR KNOWLES: But there is no way, having regard to those matters, your Honour, that the Tribunal was aware, or could have possibly been aware, firstly, that the DFAT report might be published on the internet in the future and, secondly, that a person who is named in it would become aware of it and that the Tribunal would have been aware of that at the time of making its decision. On that basis it is submitted that there is no temporal nexus between the Tribunal’s decision and publication of the DFAT report, your Honour.

So, in my submission, at the time of the Tribunal making its decision, it had to have regard to, obviously, the claims in evidence before it and at that time it could not have taken into account any claim about publication of the DFAT report. There is no evidence that at that time the Tribunal even knew of the possible future publication of the report and there was no claim made by the plaintiff ever about the potentially adverse effect of any publication of the DFAT report or, for that matter, the inquiries which led to it.

I have gone through the section 424A request, your Honour, and the reply and, in my submission, this issue was not raised expressly or even impliedly in that material and beyond that the Tribunal, in my submission, could not have suspected that the inquiries leading to the report would necessarily lead to a chance that the person named in it might harm the plaintiff in future.

Firstly, I will refer to the Tribunal’s findings. Once the Tribunal had made those findings, it had reached a view about the likelihood of harm that might arise for the plaintiff in Sri Lanka at the hands of this person. Having made those findings, this issue just simply did not arise. Secondly, the Tribunal also made findings about the absence of any Convention nexus as well and, again, that meant that in the context of the Convention this issue simply did not arise.

The report, I should say, your Honour, did not actually refer to the plaintiff at all. It did not refer to any specific aspects of the plaintiff’s claims. It relevantly related to the non-existence of an intelligence unit and in that regard, your Honour, it also seemed to suggest that there was a lack of information about this person who was named in the report and the report did not suggest that this person had done anything wrong. In fact, as I say, your Honour, a large amount of the report suggested that little, if anything, was known about the person. Otherwise where there was some information about the person, the report referred to information in the public domain from newspaper reports.

HER HONOUR: There was just no evidence that there was a publication of that material at the time of the Tribunal decision, the publication complained of on the internet.

MR KNOWLES: There is no evidence of that, your Honour. There are two things I would say about that. Firstly, the plaintiff has deposed to his representative becoming aware of it in early to mid-2008 online and that occurred in the course of preparing the section 417 request. My instructions are that the report was actually placed online in February of this year. Now, I should indicate that that presents somewhat of a contradiction in terms of the evidence of the plaintiff and the instructions that I have. I do not have any evidence about that and I cannot take it any higher.

HER HONOUR: I was going to say, their instruction is not evidence, I take it.

MR KNOWLES: That is absolutely right, your Honour. So I cannot take that any higher than that. But it does appear that there is no evidence before your Honour to indicate in any way that the DFAT report was published at the time of the Tribunal’s decision. The report, I think, was dated 11 April 2006 and the Tribunal’s decision was dated 24 May 2006.

HER HONOUR: You have referred earlier to section 48B or section 417. Are there other avenues that I should know about in terms of this fresh evidence?

MR KNOWLES: The only one that comes to mind, your Honour – and I do not know whether it would apply in this case, it has been said to have somewhat limited purview – is section 416 of the Migration Act. That refers to a situation in which a person makes a further application for review of an RRT reviewable decision and in those circumstances it says:

the Tribunal, in considering the further application:

(c) is not required to consider any information considered in the earlier application or an earlier application; and

(d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.

HER HONOUR: That sounds like a cognate application for review. It sounds like there has already been one application for review and that this is a fresh one somehow.

MR KNOWLES: That is right, your Honour. Your Honour will see, if your Honour has the provision there, that the introductory paragraphs really require that there has been an application previously which has been determined, or applications, plural, that have been determined. There is scope, it would appear, for consideration to be given to a further application.

HER HONOUR: Maybe you read it with 48B so you get these exceptional circumstances where a second application for review is permitted to be made. That may be.

MR KNOWLES: That may be so, your Honour. All I can say is that I have not addressed that provision in any detail, but it does appear to be another possibility. I do not put it any higher than that. I do not have any firm instructions or view about whether or not it would lead anywhere for the plaintiff if it were a course which was adopted ultimately.

HER HONOUR: Yes, of course. One does not want to raise false hopes.

MR KNOWLES: No, your Honour. Now, if, in this case, some jurisdictional error could be shown which affected the Tribunal’s decision separate to what has been alleged by my learned friend, certainly in those circumstances this matter would go back to the Tribunal and then the Tribunal would have to make a decision on the basis of what was before it at the time of making its decision and that would include all of the information that has been put before your Honour. But no such circumstances exist in the present case, in my submission. The plaintiff does not challenge the Tribunal’s decision on any basis other than that associated with the subsequent publication of the DFAT report and then the subsequent threats that are alleged to have been made.

My learned friend refers to it being a threat that was made in respect of publication on the net, but it is not clear at all, your Honour, whether or not there would be any Convention nexus in any event, but ultimately that is a matter for the Tribunal in its assessment of the merits. It is certainly not the case that it could be said that any claim that went back to the Tribunal would necessarily have a certain prospect of success. In my submission, where there is no jurisdictional error that affects the Tribunal’s decision, its functus officio, the principles discussed in Bhardwaj, your Honour, which is at tab 6 of the folder of authorities, would not apply. I do not propose to take your Honour to the case.

HER HONOUR: Yes, thank you.

MR KNOWLES: But the principle of there being no decision at all because of a jurisdictional error affecting the decision – essentially what the plaintiff seeks to do is reopen the Tribunal’s consideration of the matter due to newly acquired material and that is not something which is possible, in my submission. In that regard, I would refer your Honour to the comments of Justice Goldberg in the decision in Jayasinghe at page 311.

HER HONOUR: What tab, sorry?

MR KNOWLES: That is at tab 3, your Honour.

HER HONOUR: Thank you. Yes, I have that.

MR KNOWLES: In the paragraph commencing at D on the page your Honour will see there that Justice Goldberg stated, four lines down:

I do not consider it a correct characterisation of the doctrine of functus officio to call it a “legal technicality”. Rather it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform -

In my submission, my learned friend has not put forward any basis to show that at the time of the Tribunal conducting its review and making its decision and completing that task at those times there was any error which affected the Tribunal’s decision.

In that case, I should just point out, your Honour, that one of the bases upon which Justice Goldberg found that there was an inability of the plaintiff to reopen a case before the Tribunal due to newly acquired evidence was that the Act provided for other mechanisms for a person who encountered those circumstances, such as, for instance, section 48B or section 417 of the Act.

A similar point was made in the next case in the folder of authorities, tab 4, which is the High Court’s decision in Thiyagarajah, your Honour. At page 355 in the judgment of Chief Justice Gleeson and Justices McHugh, Gummow and Hayne at paragraphs 29 and 30 their Honours said about five lines into paragraph 29:

the Act posits the determination of a particular application at a particular time. The Act contemplates changed circumstances which might found a fresh application, but imposes the limitations found in ss 48A and 48B.

It would be inconsistent with that scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the Tribunal as provisional in nature. In the situation where the Tribunal had, without reviewable error, disposed of an application for review of the decision . . . the Act did not confer upon the Tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.

In my submission, that is fundamentally what has occurred in the present case. Turning just to the first specific ground, your Honour, it is not entirely clear, in the first defendant’s submission, what the nature of the specific contravention was and how it affected the decision. Certainly there is no indication in the material that if there was any contravention it occurred prior to or at the time of the Tribunal making its decision.

In relation to section 431 of the Migration Act, your Honour, my learned friend made some submissions about that and what is to be regarded as the proper construction of subsection (2) in that provision. As I understand it, it is asserted that subsection (2), insofar as it contains a reference to any statement, does not refer to the statements that are referred to in subsection (1).

I note firstly, your Honour, that subsection (1) commences with the words “Subject to subsection (2)” and, in my submission, that makes it quite clear that those two subsections ought to be read together and a reference in one of them to a statement, being a statement prepared under section 430(1) of the Migration Act, should hold true in respect of how one construes the reference to a statement in the other subsection. Secondly, if the drafters of subsection (2) had intended that it were to apply to documents more broadly, it would have been a simple task for that to have been said in the relevant provision. The provision might simply have referred to any document or any information rather than any statement.

Thirdly, your Honour, when it became apparent that this particular construction was challenged - I have a copy as a result of that of the explanatory memorandum for the Bill which introduced section 431, if I could hand a copy of that up to your Honour. I have provided a copy to my learned friend earlier. The bundle contains an extract from the Migration Reform Bill 1992 and that extends for four pages, the last page of which sets out section 166EA, which was section 431 prior to renumbering occurring in 1994. Your Honour will see that at that time there is one material difference between this provision as it was originally introduced and how it now appears. As it was originally introduced it required that all decisions be published. It has been changed now that only decisions that the Principal Member thinks are of particular interest must be published. In my submission, that does not have a bearing on this case.

Your Honour will see there subsection (2) is relevantly within the same form. If your Honour turns to the explanatory memorandum and the statement in relation to section 166EA it states:

This section provides that the decisions of the RRT are to be published, but no information which might serve to identify an applicant or any relative or dependant of an applicant can be included.

So, in my submission, again that supports the construction that section 431, including subsection (2), only relates to statements of reasons and does not relate to other material. It might relate, of course, to material that was contained within a statement of reasons, but it does not relate to the circumstances of which the plaintiff complains in this case, namely, publication of the DFAT report on the internet.

Now, just in relation to the point I just raised, your Honour, about the possibility that section 431 might relate to publication indirectly of the DFAT report in the Tribunal’s decision if the Tribunal’s decision were put on the internet, I just reiterate that it has not been established in any way whatsoever that the Tribunal’s decision was every made publicly available on the internet in this case and, as I have already indicated to your Honour, I am instructed that the Tribunal’s decision was never published on the internet. Even if it had occurred, it has not been established that any published version of the Tribunal’s decision revealed information that identified the applicant or a relative contrary to section 431(2).

HER HONOUR: Well, I have certainly understood that the complaint is all about the extracts of the DFAT report that can be found in research response number LKA23857.

MR KNOWLES: Yes, and not as it appears in any Tribunal decision but separate to that, yes. So, in my submission, there is no basis whatsoever to say that section 431 of the Migration Act has been breached. Section 420 - that is raised by my learned friend. I note that the submissions that were made before your Honour today seemed to suggest that 420 itself would not provide a foundation for establishing jurisdictional error. However, it may bear upon construction of other provisions and whether or not there has been a contravention of other provisions. That may be so, but it is certainly not accepted that an alleged contravention of that provision itself gives rise to jurisdictional error.

In that regard, it is submitted that Eshetu stands for that proposition. My learned friend suggested that Eshetu only related to consideration of grounds then specifically set out in the Migration Act in relation to review by the Federal Court. But if your Honour goes to the reply submissions prepared by my learned friend for the plaintiff - - -

HER HONOUR: Yes, I have those.

MR KNOWLES: - - - and the extract of Eshetu, which appears at paragraph 7, and paragraph [77], which is set out there, your Honour - - -

HER HONOUR: Yes, I have that.

MR KNOWLES: At the last line it says:

It follows that the Tribunal’s decision is not reviewable, whether in this Court or in the Federal Court, on the ground that the Tribunal failed to observe procedures required by s 420 of the Act.

HER HONOUR: I think if you then look at paragraph 10, there is a concession essentially made in relation to section 420 being facultative.

MR KNOWLES: Yes, I understand, your Honour.

HER HONOUR: The point being made is that the decision is outside the scope of what is fair, just or substantial justice. That is the way section 20 is used.

MR KNOWLES: Yes, I understand that, your Honour. But if it is put that if it is outside those terms it leads to a breach of section 420, it does not go anywhere unless it can be shown that there is a contravention of another provision.

HER HONOUR: I understand that, Mr Knowles.

MR KNOWLES: The same applies obviously in relation to the object provision like section 420. It might inform a construction of other provisions but it does not impose any specific obligations itself.

HER HONOUR: Yes.

MR KNOWLES: Then there is section 439, and that is the prohibition on disclosure of certain confidential information in particular circumstances. The prohibition does not extend, as your Honour will see, in section 439(2) to information which is disclosed for the purposes of or in connection with the performance of a function or duty or the exercise of a power under the Act. It is submitted by the first defendant firstly that the publication of the DFAT report on the internet did not contravene section 439.

It is not known whether the person who did it was one of the specific people who is mentioned in subsection (1) of the provision, but perhaps more importantly, it is submitted that the relevant conduct fell within the exception to the prohibition on disclosure of confidential information because it is submitted that it was in connection with the performance of a function or duty or the exercise of a power under the Migration Act and primarily in connection with section 414, the Tribunal’s conduct of review; section 420, its way of operating; section 424, the Tribunal seeking information; section 424A which relates to putting information to visa applicants but does not include putting country information to visa applicants. But even if your Honour were to find – which is not conceded by the first defendant – that there was some contravention of section 439 by virtue of the publication of the DFAT report, it is entirely unclear how any contravention of that provision could have given rise to jurisdictional error affecting the Tribunal’s decision.

HER HONOUR: So your argument on this is the publication was done in connection with the performance of a function or a duty in the exercise of the - - -

MR KNOWLES: That is so, your Honour. That is the first argument and then the second argument is, well, even though it is not conceded that there has been any contravention, assuming for the sake of argument that there had been at the time of publication of the report, it could have had no effect on the Tribunal’s decision such that the Tribunal in making its decision acted outside of the jurisdiction which was given to it.

HER HONOUR: Yes.

MR KNOWLES: In relation to section 427, that is the inquiries power, that was where there was a submission made about there being constraints on that power pursuant to sections 4, 420 and 439 of the Act. I note, your Honour, at tab 10 of the folder of authorities, a Federal Magistrates Court decision in SZGTF and the reason I bring it to your Honour’s attention is paragraphs 31 and 32 of that decision concern a similar submission and the submission was there that section 427 had an implied constraint to it which involved protection of the privacy of refugee claimants and it was not accepted that the provision should be construed in that way.

At paragraph 32 your Honour will see the submissions made by the first respondent in that case and I adopt those submissions in this case as well, again to say that section 427 is merely a provision that provides a tool to the Tribunal in terms of obtaining further information and it does not go further or in any other way. I note also, when one has regard to other information-gathering provisions in the Act such as section 424, your Honour, like section 427, there is no constraint that is referred to. In section 424 it is stated that:

In conducting the review, the Tribunal may get any information that it considers relevant.

That suggests the Tribunal has broad information-gathering powers.

HER HONOUR: The processes are inquisitorial. I think this Court has said that on many occasions.

MR KNOWLES: Yes, your Honour. In terms of the constraint that my learned friend has put forward, that is the constraint about the Tribunal not doing anything to harm the people who bring review applications, the submissions, as your Honour will have seen in the written outline prepared for the first defendant, are essentially that that is not the purpose for which the Tribunal exists. It may be the effect of a Tribunal’s decision, but the purpose for which it exists is essentially to review decisions made by a delegate of the first defendant.

So, for those reasons, your Honour, it is submitted that there has not been established any breach of section 427 of the Migration Act and having regard to those submissions as a whole, your Honour, it is submitted that there has not been established any breach of any provision of the Migration Act and certainly there has not been established any breach that could have affected the Tribunal’s decision in any way that gave rise to jurisdictional error.

In terms of the second ground, your Honour, at tab 11 of the folder of authorities there is a Full Federal Court decision of NABE and in that case the Full Court considered when the Tribunal had an obligation to deal with a particular issue. The Full Court concluded – and this is at the bottom of paragraph [60] on page 44 – that the Tribunal:

is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

That was after, in my submission, a fairly extensive review of the authorities in existence at that time including the High Court’s decision in Dranichnikov and at paragraph [68] the Full Court stated:

Although such a claim might have been seen as arising on the material before the tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the tribunal.

It is submitted that that properly reflects the position and it also applies in this case such that there was no articulated claim made by the plaintiff about the matters that are now brought before your Honour. On the one hand, that arguably was not possible because there was no knowledge of the publication. Having said that, on the other hand, there clearly was knowledge about the inquiries which led to the DFAT report and there clearly was knowledge of the DFAT report itself and there clearly was an ability provided to the plaintiff and his representative to make claims about how those inquiries might have caused problems for the plaintiff in future upon any return to Sri Lanka.

As I have previously submitted to your Honour, there is no such claim that was articulated by the plaintiff or his representative in the materials that are available, number one, and, number two, there was no such claim which clearly emerged from the materials which were before the Tribunal. This was particularly so when one looks at this matter in the context of the Tribunal’s findings which I have previously referred to which said that the plaintiff did not face a prospect of harm from this particular person if returned to Sri Lanka and did not face any prospect of harm from this person for any Convention reason.

Now, if I can just briefly turn to the issue of time limits, your Honour. As I have indicated to your Honour earlier, in terms of section 486A, the relevant time was 35 days after 15 March, so that brings the time to around about 19 or 20 April and on that basis, the actual application that was made in this case on 7 May was only out of time by a period of less than a month on that calculation. Now, in terms of extending the time, obviously your Honour will see in section 486A(2) that that may occur where it is considered appropriate if your Honour is satisfied that it is necessary to do so in the interests of the administration of justice.

Now, in my submission, it is not in the present case. There are the issues of the merits that I have just referred to before your Honour. There are the issues of the length of the delay, if one considers the actual date of the decision, but I understand in this case it is taken from a much later time, but the length of the delay here is perhaps a bit of a misnomer when one has regard to the history of proceedings that have occurred previously in respect of the very same Tribunal decision.

That brings me to the reasons for the delay and it appears that the only reasons that are really put forward are, firstly, conduct of previous proceedings by the plaintiff including the section 417 application and, secondly, the failure or the inability to obtain favourable advice about certainly the second ground. I would not necessarily say that in relation to the first ground because some of the facts that have arisen are arguably integral to the first ground in terms of publication of the DFAT report, but certainly in relation to the second ground it was arguably open to assert earlier that there was a failure by the Tribunal to take into account how the inquiries might affect the plaintiff in the circumstances of his case.

I also note, though, even in relation to the first ground, your Honour, this matter previously came before the High Court in a special leave application. It was not determined until May 2008 and according to the affidavit of the plaintiff, the fourth affidavit, he and his representative were aware of the publication on the internet in early to mid-2008. In my submission, there was at least some ability to raise issues about the effects of publication of this material at that time and it did not occur. Apart from those matters, your Honour, it is obviously necessary to, as Justice McHugh stated in Marks, have regard to the public interest in there being an end to litigation about the efficacy of Acts or decisions of public bodies or officials.

HER HONOUR: That submission you have just made, is it a submission that is about the plaintiff’s awareness or is it the plaintiff’s representative’s awareness?

MR KNOWLES: Perhaps if I just return to the fourth affidavit, your Honour.

HER HONOUR: Evidence perhaps.

MR KNOWLES: I understood it to be both. In paragraph 8 your Honour will see - - -

HER HONOUR: “In early to mid”.

MR KNOWLES: “2008, I became aware”. Admittedly it is not very clear whether or not that was prior to May 2008.

HER HONOUR: No, it is not very clear.

MR KNOWLES: It could be anywhere between January and - - -

HER HONOUR: The beginning to the end of June, I suppose.

MR KNOWLES: Yes, your Honour. So that is not entirely clear. I note this was in the course of preparing the section 417 application. At paragraph 19 of the same affidavit your Honour will see that that application was actually made on 19 June 2008.

HER HONOUR: Yes.

MR KNOWLES: So it is not clear though how long before the application or the request was made pursuant to section 417 that there was an awareness of this material. All I am indicating, your Honour, is that the evidence as it stands creates some uncertainty as to whether or not there was an ability to raise an issue about publication of the DFAT report earlier in the previous proceedings before this Court.

Now, in this case, in my submission, your Honour, there are no exceptional circumstances that exist to grant an extension of time. The DFAT report and the inquiries which led to it have been known about since May 2006. The Tribunal’s decision has been known about since June 2006. In many respects, the arguments that arise in respect of at least the second ground arise out of the inquiries which led to the DFAT report.

I note that my learned friend at the beginning of his oral submissions today stated that those inquiries were the starting point for the grounds. Otherwise I would note that the plaintiff has been legally represented in all of the previous proceedings in courts, contrary to what is otherwise suggested in the affidavit material. He appears, on the basis of his most recent affidavit, to even have been represented during the processing of the section 417 request which, as I say, was lodged in June apparently after the refusal of special leave in June 2008.

There is also a suggestion in the material that somehow impecuniosity had contributed to any delay, but, as I have already indicated to your Honour, the plaintiff has previously had legal representation and, on top of that, has commenced the present proceedings without legal representation. If he was able to commence these proceedings by himself, it is not clear why he was unable to do it earlier. Otherwise, your Honour, I would just refer to tab 13 where there is a case of SZMNO, a decision of Justice Barker in the Federal Court. Paragraphs 24 to 26 refer to the general proposition that impecuniosity or financial constraints are not of themselves, at least, an acceptable explanation for delay.

Now, in relation to the previous judicial review proceedings, at tab 14 is a copy of the transcript of a decision of Justice Hayne in the matter of Applicants M31/2004 and on page 10 at lines 379 to 391 and, most relevantly, at lines 388 to 391 his Honour referred to previous judicial review proceedings which had occurred in that case. His Honour said:

the institution and disposition of those proceedings together constitute reason to refuse the extension of time that would be a necessary condition precedent to their making the claims they seek to make.

In my submission, that is applicable in the present case. It certainly cannot be said that those previous proceedings provide some justification for the delay themselves. In relation to the section 417 request, your Honour, there is one decision that is not contained in the folder of authorities and I have provided a copy earlier to my learned friend and I would seek leave to hand that up to your Honour.

HER HONOUR: Yes, thank you, Mr Knowles.

MR KNOWLES: It is a decision of Justice Goldberg in the Federal Court in Daniel and on page 202 at paragraphs [14] and [15], but more particularly, paragraph [14], his Honour considered whether or not undertaking a section 417 request course of action would provide an acceptable explanation for delay. His Honour relevantly found that:

The taking of that course of action by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the tribunal on grounds available under the Act or otherwise at law.

Then his Honour referred to a specific matter in that case where the applicant had said:

I was left with the only avenue of requesting the . . . [minister] to exercise his power under s 417.

Then his Honour goes on to refer to a number of other cases in which, even without that distinguishing feature, there were similar views held about the effect of a section 417 application having been made and the fact that it gave rise to the ability of the court to infer that by the making of that application the person had accepted that they had exhausted their options in respect of judicial review.

Otherwise, in relation to the previous inability to obtain favourable legal advice, your Honour, as I have already indicated, there was legal representation available to the plaintiff in each of the proceedings before the courts. He was represented before the Tribunal. He was also assisted by a migration agent in relation to the section 417 request. I would also refer your Honour to something that Justice McHugh said about this in Marks and that is at tab 12 of the first defendant’s folder authorities. At paragraph [17], your Honour, his Honour stated that:

An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant’s search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two-month period for mandamus and the six-month period for certiorari is a strong indicator that he or she has no case for relief.

Aside from that, obviously, there are the issues about prospects and it is certainly contended by the first defendant that the prospects of success for the plaintiff in this case are poor. Otherwise, your Honour, there are submissions set out about the principles of preclusion. The only thing I should say in addition to what is set out there is that my learned friend referred to an order that was made in the Federal Magistrates Court proceeding. I have a copy of that order, if your Honour would like to see a copy of it, relating to the matter not being an interlocutory decision and rather being a final one.

HER HONOUR: I do not think you need to trouble yourself.

MR KNOWLES: No. I think there is no dispute about it. The Federal Magistrates Court dealt with the matter finally and not on an interlocutory basis.

HER HONOUR: Thank you. I think that submission was withdrawn.

MR KNOWLES: Yes, your Honour. Otherwise I would simply refer to and repeat what is set out in those submissions about the relevant principles of preclusion. The only additional case that I would refer your Honour to is the very last one which is Applicant S1198/2003. It is a transcript of a decision given there and in that case, at lines 32 and following, the Court constituted by your Honour and Justice Hayne declined to deal with the issue of principles of preclusion but, nonetheless, went on to say:

Where, as in the present matter, the application for such relief is made long after the decision that it is sought to impugn and the intervening period has been occupied with other litigation seeking to achieve a like outcome, it is not open to doubt that the relief sought should be refused –

Then there is a reference to the earlier decision in Aala. In my submission, that is precisely the situation that arises here. So for all of those reasons, your Honour, it is submitted that no order should be made extending time, firstly. Secondly, the application for an order to show cause as further amended should be refused and, lastly, that the present proceeding otherwise be dismissed with costs.

HER HONOUR: Thank you. Yes, Mr Krohn, anything in reply?

MR KROHN: Yes, if it please, your Honour. I had been going to give your Honour the details of the section 424 letter from the Tribunal and the reply to that but my learned friend has taken you to that.

HER HONOUR: Yes.

MR KROHN: Perhaps also, if I may flag so that I do not forget it, your Honour will have seen that in one of the plaintiff’s affidavits he seeks an order from this Court preventing publication of identifying material or allowing public access to identifying material. In this case I would seek such an order in that some of the earlier affidavit material filed contains names of people.

HER HONOUR: So what is the order you want?

MR KROHN: Perhaps I might give thought to the precise details of that.

HER HONOUR: Because we have X and A in the affidavits.

MR KROHN: Yes. In the last affidavit, your Honour, but in the earlier affidavits there were names.

HER HONOUR: If you work out what order you want, it can then be considered.

MR KROHN: Thank you, your Honour. In reply, your Honour, perhaps just if I might take some of my learned friend’s points briefly in the order in which he put them before the Court. My learned friend said, if I understood him correctly, that he objected to the affidavit material, or some of the affidavit material, insofar as he said it was seeking to re-agitate matters before the Tribunal and that the proper course for that was a request pursuant to section 48B of the Act. I would simply lay emphasis, your Honour, on the fact that a request to the Minister for the exercise of his discretion pursuant to section 48B, just as a request under section 417 is a discretionary matter, there is no way that the applicant can compel the Minister to grant that in any circumstance. I think it is probably a long time since anyone has attempted judicial review of a decision of the Minister to refuse it because the Minister’s discretion is really unassailable on that point.

Also, insofar as my learned friend – perhaps this is taking a point a little out of order – says that this application is based upon propositions and on grounds which run counter to the findings of the Tribunal, with respect, your Honour, in my submission, that is not so. Even if one leaves undisturbed the Tribunal’s rejection of the applicant’s claim to have been involved in particular activities within a particular group in Sri Lanka, the Tribunal accepted the existence of this named person. The report has been published on the internet. The Tribunal accepted that the applicant was at least an ordinary member of his political party and that it is therefore not inconsistent with the Tribunal’s findings for the plaintiff to say, “Look, now, there’s that person. He sees this report or is aware of this report on the internet. He’s upset about it. It’s up on the internet that’s related to the RRT. There’s the pretty clear indication that it has arisen from inquiries in connection with a Tribunal decision, therefore an application by an asylum seeker who put me in”. In my submission, there is not an inconsistency between the findings of the Tribunal as they stand and the grounds that are sought to be argued.

The second point about that, your Honour, is that the Tribunal itself in reaching its state of satisfaction or non-satisfaction about whether an application for a protection visa is made out, is satisfied or not and it may be that on balance it is not satisfied. It may be that on balance it rejects claims of an applicant such as it rejected claims of the plaintiff. But that does not mean that even in the mind of the Tribunal there is no possibility that what the plaintiff said or some of what the plaintiff said was correct and therefore there may still be a risk. But the primary submission, your Honour, is that the ground sought to be argued does not involve necessarily an inconsistency with the findings that the Tribunal made. It is entirely possible that consistent with those findings, that nevertheless that named associate has made threats against the plaintiff precisely because of the publication of the report.

My learned friend submitted that there was no way that the Tribunal could know that the report would be published on the internet. I cannot recall whether he said that harm might follow. But as the report appears on the Tribunal’s own internet site, it would appear that one might expect the Tribunal might have an idea whether it was published or not.

HER HONOUR: Do you agree, though, with one submission that was made which was that there was no evidence about the publication on the internet as at the date of the Tribunal’s decision?

MR KROHN: Yes, I agree with that, your Honour.

HER HONOUR: Thank you.

MR KROHN: But, in my submission, your Honour, the risk of harm to the plaintiff or to anybody else from the possible publication of that report with its repeated identification of a particular person, in my submission, that was not a far-fetched risk. In my submission, it was one which was well within the ability of the Tribunal to foresee, particularly given the Tribunal’s own specific role as a specialist Tribunal in dealing with refugee matters and therefore with risk of persecution and harm. It may be that the Tribunal decided that this plaintiff was not a person at a risk of harm. That does not mean that the question “What happens if I put up on the internet or allow to be on the Internet the result of inquiries that may well stir the pot” that harm may follow. In my submission, that was not a far-fetched thing. It was certainly for the Tribunal to consider.

My learned friend referred also – apart from the section 48B request for a further protection visa and for the section 417 request for the Minister’s discretion to substitute a more favourable decision – to section 416 of the Act. Your Honour, in my submission, for so long as the present Tribunal’s decision stands, it is not one which is going to have a bearing upon the applicant insofar as the present Tribunal’s decision stands.

HER HONOUR: It suggests, anyway, there can be a second application made and it may be that it is to be read with section 48B.

MR KROHN: It may be, your Honour. However, your Honour, in my submission, there is no basis from section 416 to conclude that anything would happen other than a simple refusal by the Tribunal to entertain an application if he made an application now.

HER HONOUR: Would it not be made on fresh evidence?

MR KROHN: Apart from anything else, your Honour, there is a question of time which the Tribunal has no power to extend. An application to the Tribunal must be made within 28 days of the notification of the – I think that is correct. I will have to check the precise provision, but certainly the Tribunal has no power at all under the Act to extend time for an application to be made to it for review of a decision by the Minister’s delegate. So that on that ground alone, in my submission, there is no possibility that the applicant could now make a second application to the Tribunal. In my submission, that is not a possibility at all. Section 416 may well have a bearing if there is a 48B permission granted, but not otherwise, in my submission.

In relation to the point that my learned friend makes his submission that the Tribunal, having made the decision as functus officio, that all of this is a complaint about things that happened afterwards, that, as I understand it, therefore the first ground is something that really cannot be argued as a basis for seeking relief against the decision, there are perhaps two things about that, your Honour. The first is that the Tribunal having made a decision brings about a continuing state of affairs for the plaintiff. It may well be that in almost every case a complaint that is made about what the Tribunal has done or not done in relation to a particular applicant does have to do with what went on prior to the making of the decision. That may be, perhaps, almost the universal situation.

But in a case where the Tribunal has itself allowed or brought about a situation posing a risk to the applicant and it has done so as a result of or consequent upon inquiries it made in connection with the applicant’s case, in that situation then quite properly the plaintiff may seek relief to set aside the decision on the basis of what was done by the Tribunal afterwards. It may well be that that would not be such a strong submission if the decision of the Tribunal did not have the effect that it has, that is, it creates a fixed situation so that unless the Minister in the exercise of his completely uncompellable discretion chooses to allow a further application for a protection visa, then that is it.

In my submission, it cannot be said to be within the power and jurisdiction of the Tribunal to act in such a way as to bring about a situation where the Tribunal itself contributes to the putting of an applicant in risk of serious harm and possibly at risk of persecution and also by its decision and the continuing status of that decision prevents the applicant by right of doing anything about it. I would lay stress, your Honour, upon the distinction between what an applicant before the Tribunal may do as of right and what he may do, cap in hand, before the Minister, but as of right, because the Parliament of the Commonwealth has incorporated by reference our treaty obligations under the Refugees Convention into domestic law, a person has a right under domestic law to claim protection, if that person meets the definition of “a refugee”.

In my submission, in this very, perhaps, unusual situation, the Tribunal cannot be held to have acted within its jurisdiction if it has even, if you like, as the last echo of what it has done in connection with an applicant’s case, put that applicant into peril. Indeed, to some extent in his submissions my learned friend, at least for the purposes of claiming exemption and protection under section 439, did seem to lay stress upon the connection between the publication of the report and the discharge of functions or powers or offices under the Act. The critical role of the Tribunal under the Act was to review the decision of the Minister’s delegate.

In my submission, there is a sufficient connection between what the Tribunal did in beginning to make its inquiries before the decision and the harm which the plaintiff claims the Tribunal has brought about after the decision that ground 1 may properly be pressed in pursuit of the relief sought. But even at a more simple level, your Honour, in relation to the relevant considerations ground, the ground 2, that was clearly, in my submission, beyond any doubt a question for the Tribunal to consider before the decision was made.

The Tribunal determined to make these inquiries, it did make them. It was incumbent upon the Tribunal to consider what might be the consequences of those inquiries and even if the Tribunal was minded to reject a number of the plaintiff’s particular claims, then it still may have been, and, in my submission, in this case it was, incumbent on the Tribunal to consider, well, nevertheless, may this cause some harm, some risk to the plaintiff, to the applicant?

That is the more so the case, your Honour, in my submission, because even if the Tribunal was right from an omniscient point of view in rejecting some of the plaintiff’s claims, it is still under the function and role of the Tribunal and its decision to make inquiries, it is still something for the Tribunal to consider whether making inquiries and stirring up attention and possibly publishing the results of that freely accessible on the internet, might be something to put the applicant before it at risk. In my submission, that does not take the Tribunal outside of the ordinary temporal scope of being required to consider something at a time before its decision.

In relation to the role of section 420, my learned friend took your Honour to paragraph [77] of the judgment of Eshetu which I quoted in the submissions. In my submission, if you like, the word to be emphasised there is “procedures”. Section 420 does not specify procedures, but it does say some very important things about the role and, in my submission, the jurisdiction of the Tribunal. So that if the Tribunal falls into some errors, some of those errors may be characterised as being beyond jurisdiction and section 420 may be one of the reasons that sheds light upon that and section 4 similarly. In the written submissions I referred to section 5, the one that refers to the Minister considering Australia’s international relations as being something which, for some purposes at least under the Act, may be something having a bearing on the national interest.

In relation to the time point, your Honour, I did not make submissions before your Honour in relation to the transitional provisions of the amending Act which commenced on 15 March this year. I had not done that - - -

HER HONOUR: But you would want to take advantage of them, would you not?

MR KROHN: Yes, I do. I only wish to perhaps indicate that maybe that transitional provision might be capable of being read the other way depends whether you say that the date of the decision, that is 24 May 2006, should be treated as the date of the commencement of the amending legislation.

HER HONOUR: Well, it seems plain enough.

MR KROHN: But, taking my learned friend’s concession that it reads the other way, that therefore 15 March 2009 is to be taken as the date of the migration decision, it is quite explicit that that is for the purpose of calculating time limits Parliament has set up. That is precisely the purpose of that transitional provision and therefore I do wish, very vigorously, to take advantage of that, your Honour.

HER HONOUR: It means the delay has to be characterised as a short one.

MR KROHN: It must be characterised as a short one and that is not, as it were, the result of a mere technicality. That is a result, in my submission, of very clear, express will of Parliament directed precisely to the issue of what about an old decision in the light of this new Act. Well, we will say, take it from 15 March.

HER HONOUR: Yes, I accept that.

MR KROHN: For that reason it is a short delay, your Honour, and being a short delay, those matters which the plaintiff must establish in order to get the extension of time required are much less grave, in my submission, in order to persuade your Honour that the interests of the administration of justice require the enlargement of time to be given. So, in my submission, I do vigorously submit it is a short one but the various matters I put before your Honour militate strongly in favour of the enlargement of time and that, in particular, there are two things very strongly in favour.

They are that what the plaintiff complains about, what he seeks to run as his grounds for seeking substantive relief is a situation brought about by the Tribunal and to that extent, in my submission, it is a matter relevant of the kind that his Honour Justice McHugh considered in connection with enlargement of time. If the public official is at fault, then that is something to be weighed in the balance. The other is the time at which the plaintiff has become aware of the threats and then, if you like, the escalating nature of those threats.

In my submission, the short enlargement of time or extension under section 486A that the plaintiff seeks is one which should be granted. In my submission, insofar as the question of the merits of the application are relevant, then the burden on the plaintiff to show the prospects of success of his substantive application is a lesser burden than if he were seeking to make a request for a lengthy extension of time. So, in my submission, in this case because of those transitional provisions, the time issue is a much lesser concern for your Honour than it might have been but for those transitional provisions. But the transitional provisions mean that your Honour ought not to be considering this as anything other than an extension for approximately a month.

Perhaps, with respect, your Honour, I might submit that perhaps what appears in the transcripts and arguments in other cases before the High Court, if I might respectfully make the submission, it is to some extent limited assistance because even statements of general principle that may appear in such a transcript to some extent will be coloured by the facts of the particular case that was before their Honours, the Justices in the individual case.

In relation to the 417 point and the point that my learned friend makes that in Daniel’s Case that is not a reason then to come and seek an enlargement of time, in my submission, when one is considering at least the short interval that is now left, that is a lesser concern, but also that from the point of view of an administrative lawyer it may be said that when a person seeks a discretion of the Minister under section 417 to substitute a more favourable decision than the decision of the Tribunal, that is accepting the Tribunal’s decision but that is, in the technical sense, the discretion of the Minister to make a more favourable decision under section 417 arises only when there has been a decision of the Tribunal.

From the perspective of the person who has applied for a protection visa, it is simply a different way, among several, of seeking relief against that decision. So, in my submission, perhaps especially in a case where, as here, a plaintiff has acted promptly and vigorously from the time of the Tribunal’s decision and according to his affidavits has done so to the best of the advice he was given, in my submission, that is not a matter which weighs against the plaintiff in the administration of justice and in this Court considering whether it is appropriate to grant the enlargement of time.

I have made the other submissions in relation to the estoppel issue. I note what my learned friend indicated about what your Honour and his Honour Justice Hayne said about not rejecting an application for an order to show cause and for enlargement of time on the basis of questions of preclusion. In this case, in my submission, the prior legal proceedings were beyond doubt run on a completely different basis from what is sought to be raised before your Honour in this Court. I have already made the submissions in writing and orally about why this could not have been raised earlier. I will, if I may, just devote a couple of moments to a form of order relating to identifying of material.

HER HONOUR: What I was going to suggest, if you need some time to do that, is that I will now give my reasons and judgment and it is possible that some non-publication order can be sorted out by consent.

MR KROHN: Yes.

HER HONOUR: I mean, I am not sure if you can multitask, Mr Krohn, but by all means, I will pause for a minute or two, but it seems to me that if you do not exactly know what it is now that you want and you need to go through the affidavits, that would probably take more than a minute or so.

MR KROHN: Yes. In that case, then, your Honour, if your Honour is content for it to be something to be negotiated between the parties.

HER HONOUR: Yes. I mean, I will be in chambers during the course of the day.

MR KROHN: Thank you. I am indebted for my learned friend’s indication that the Minister neither opposes nor consents to such an order.

HER HONOUR: It will be up to you then to formulate the order.

MR KROHN: Yes.

HER HONOUR: Well, shall I then proceed and I will give you an opportunity in due course to come up with something.

MR KROHN: Thank you, your Honour.

HER HONOUR: On 7 May 2009, the plaintiff, a Sri Lankan national, filed an application for an order to show cause seeking constitutional writs and related relief. The plaintiff was initially unrepresented, but on 5 October 2009, a notice stating that a solicitor was acting for the plaintiff was filed in this Court.

On 5 October 2009, the plaintiff filed an amended application for an order to show cause. A further amended application was filed on 7 October 2009. The further amended application seeks a declaration and writs of certiorari, prohibition and mandamus in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 May 2006 and handed down on 6 June 2006 affirming a decision made by a delegate of the Minister not to grant the plaintiff a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).

The plaintiff filed an application for an order to show cause why relief should not be granted under section 476 of the Act against the decision of the Tribunal in the Federal Magistrates Court of Australia. Counsel appeared for the plaintiff. On 3 August 2007, the Federal Magistrates Court, Federal Magistrate McInnis, dismissed the application with costs: MZXLD v Minister for Immigration and Citizenship (No 2) [2007] FMCA 1267.

The plaintiff filed a notice of appeal in the Federal Court of Australia from the judgment of the Federal Magistrates Court. At the hearing of the appeal the plaintiff was represented by counsel. On 6 December 2007, Justice Gordon dismissed the appeal: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912.

On 3 January 2008, the plaintiff filed an application for special leave to appeal in this Court from the judgment of Justice Gordon. Again, the plaintiff was represented by counsel. On 23 May 2008, Chief Justice Gleeson and Justice Kiefel dismissed the application for special leave to appeal on the basis that the decision of the Federal Court was correct: MZXLD v Minister for Immigration and Citizenship [2008] HCATrans 214.

The plaintiff has deposed that by a letter dated 19 June 2008 the plaintiff then requested that the Minister intervene in his case under section 417 of the Act. Generally speaking, that course of action would be indicative of a decision not to further pursue challenges to the Tribunal decision. On 9 April 2009, the Minister refused to intervene. The abovementioned application for an order to show cause then followed on 7 May 2009. It has been amended twice.

On 8 September 2009, the Minister filed an amended summons seeking an order that the application for an order to show cause be refused on the basis that the plaintiff is prevented by res judicata and/or issue estoppel from making this application; alternatively, on the basis that the plaintiff cannot establish the arguable case necessary for the grant of prerogative relief; alternatively, on the basis that the application is an abuse of process and further, that the application is made out of time such that no enlargement of time should be granted.

Each party supplemented written submissions with oral submissions today. It can also be noted that the second defendant has filed a submitting appearance. Section 486A(1) of the Act requires that an application to this Court for a remedy to be granted in the exercise of this Court’s original jurisdiction in relation to a migration decision be made to this Court within 35 days of the date of the migration decision. The Tribunal decision was made some two years and 10 months before the present application to show cause was filed.

It must, however, be noted that by reason of the provision of the Migration Legislation Amendment Act (No 1) 2009, item 7 of Schedule 2, the date of the Tribunal’s decision is to be treated as the date of the coming into operation on 15 March 2009. This means that the delay is a short one.

Section 486A(1) is expressly stated to apply to all applications under section 486A made after that date, so it applies to the plaintiff’s application. As the plaintiff’s application was not filed until 7 May 2009 the plaintiff requires an extension of time under section 486A(2) of the Act. Before making an order extending time under section 486A(2), this Court must be:

satisfied that it is necessary in the interests of the administration of justice –

to do so. Decisions of this Court concerning applications for extensions of time under the High Court Rules reveal considerations which are also relevant to the present application under section 486A. In Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 474 paragraph 15; [2000] HCA 67 (“Marks”) Justice McHugh stated that in cases where the issue of the constitutional prerogative writs is sought, the public interest is engaged because the relief which is sought is:

directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

In any event, factors relevant to an application to extend time include not only the length of any delay or reasons for that delay, but also the prospects of success of the case now sought to be advanced and the utility of advancing that case.

It is convenient to briefly consider the prospects of the plaintiff succeeding in his application. In the further amended application the plaintiff claims that the Tribunal’s decision is affected by jurisdictional error. He advances two grounds in support of that claim. The first ground is that the Tribunal “acted in breach of its powers and obligations under the law”. The second ground is that the Tribunal “failed to consider relevant considerations or materials”.

Under the first ground the plaintiff asserts jurisdictional error of the Tribunal by causing or allowing inquiries to be made of the Department of Foreign Affairs and Trade (“DFAT”) and/or causing or allowing to be published DFAT’s reply to those inquiries by way of report, extracts of which are incorporated into the Tribunal’s research response No LKA23857. The DFAT report contains no mention of the plaintiff. The publication of that report is said to have resulted in the identification of an associate of the plaintiff with the result that the plaintiff has been identified by some persons in his country of nationality as an asylum seeker. In turn, this is said to lead the plaintiff to have a well-founded fear of persecution in his country of nationality or further, or in the alternative, has put the plaintiff at risk of harm in his country of nationality.

The plaintiff has given sworn evidence that he has spoken to a person who is a friend in Sri Lanka who has reported that the associate referred to in the DFAT report has made a threat to the plaintiff’s life. Mr Knowles for the Minister has submitted that this fresh evidence is not relevant to an allegation of jurisdictional error in the Tribunal decision.

In the context of that fresh evidence, the plaintiff submits that the publication of the DFAT report involved breaches of sections 4, 420, 427 and 431 of the Act. The alleged breaches are dealt with here in the same order in which the plaintiff dealt with them in written submissions. After the heading “Certain Tribunal decisions to be published” section 431 of the Act provides:

(1) Subject to subsection (2), and to any direction under section 440, the Registrar must ensure the publication of any statements prepared under subsection 430(1) that the Principal Member thinks are of particular interest.

(2) The Tribunal must not publish any statement which may identify an applicant or any relative or other dependant of an applicant.

The plaintiff submits that section 431(2) should be read as prohibiting the Tribunal from publishing any statement which identifies the plaintiff. Section 431(2) must be read in context. It is clearly intended to be read with section 431(1). It provides for a particular restriction upon the publication of the contents of statements prepared under section 430(1).

After the heading “Refugee Review Tribunal’s way of operating”, section 420 provides:

(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

The plaintiff argues that an action by the Tribunal may be so far outside the scope of any description of what can be described as “fair or just or substantial justice” that the Tribunal cannot be said to be acting within the scope of the jurisdiction and power conferred by Parliament and so section 420 is breached.

It was established in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 that section 420 is facultative and does not provide a foundation for establishing jurisdictional error. That authority is sufficient to dispose of this submission of the plaintiff. However, it can also be noted that the processes of the Tribunal are inquisitorial and seeking information from relevant sources is an aspect of those processes.

Section 424 of the Act states that in conducting its review the Tribunal:

may get any information that it considers relevant.

In relation to section 4 of the Act, the plaintiff directs attention to subsection (1) which provides:

The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

Focusing upon the phrase “in the national interest” the plaintiff contends that the national interest must include the discharge by Australia of its obligations under international agreements such as the Refugees
Convention. The plaintiff argues that this construction is consistent with section 5 of the Act which refers to the national interest and Australia’s international relations in the following definition:

“non-disclosable information” means information or matter:

(a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

(i) prejudice the security, defence or international relations of Australia –

In this regard, I accept the Minister’s contention in response that section 4 sets out the object of the Act and does not impose reviewable obligations upon the Tribunal. Similarly, the definition of “non-disclosable information” does not impose reviewable obligations upon the Tribunal.

The plaintiff deals with section 427 of the Act in the context of submissions relating to section 439. Section 427 deals with the powers of the Tribunal and other matters. The focus of the plaintiff’s argument is upon section 439. Section 439 prohibits disclosure by specified people of certain confidential information in particular circumstances. However, the prohibition does not apply to information disclosed “for the purposes of this Act” - section 439(3)(c), or “for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act” – section 439(3)(d).

The plaintiff argues that this exception does not cover the publication by the Tribunal of the DFAT report. That submission cannot be accepted. Publication was done in connection with the performance of a function or duty or the exercise of a power under the Act. Secondly, the Minister contended that, in any event, the publication which was subject to the Tribunal decision could not have affected the Tribunal’s decision or caused it to exercise its power erroneously. That submission must be accepted.

It can be noted that in the plaintiff’s outline of submissions filed on 7 October 2009, the plaintiff argues for the following limitation upon the Tribunal’s power:

The Tribunal cannot be taken to be permitted to act in a way which causes, or might cause, an applicant before it to be at risk of the harm which the Tribunal exists to prevent. The powers to make or cause enquiries (Sections 427, 431 of the Act) must be subject to the limits implicit from sections 4, 420 and 439 of the Act.

This assertion of a general limitation upon the power of the Tribunal is not supported by the particular provisions referred to by the plaintiff which have been dealt with already.

The second ground upon which relief is sought is that the Tribunal failed to consider the possible consequences if it caused or allowed inquiries to be made by DFAT and caused or allowed the DFAT report to be published. The plaintiff argues it was incumbent upon the Tribunal to consider whether the making of such inquiries, or the publication of the response to them, might put the plaintiff at risk. Again, it is relevant to note that the Tribunal’s processes are inquisitorial.

The Minister has correctly submitted that the Tribunal could only consider the material before it at the time of making its decision. The plaintiff was given an opportunity to respond to the DFAT report. There was no intimation in that response or any express or implied claim by the plaintiff or his representative in the terms described in the second ground. On that issue, it is submitted for the plaintiff that he should not be criticised because he did not appreciate that the DFAT report had been published. There was no evidence that extracts from the DFAT report were published on the internet at the time of the Tribunal’s decision.

On the materials in support of the application there is no support for a case that the Tribunal fell into jurisdictional error and no disclosure of an arguable case for the relief sought. What the plaintiff essentially seeks is a second opportunity to make a case based on fresh evidence based in turn on conversations with a friend in Sri Lanka. That fresh evidence is not such as to raise exceptional circumstances.

Despite the submissions of Mr Krohn, which raised all that could be put on behalf of the plaintiff, I am not persuaded that the plaintiff has arguable prospects of success in relation to this second attempt to have recourse to the judicial power of the Commonwealth in respect of the Tribunal decision.

It can be noted that the Act contemplates that changed circumstances might found a fresh application, but imposes limitations in sections 48A and 48B. When considering the Act’s scheme for fresh applications in The Minister for Immigration v Thiyagarajah (2000) 199 CLR 343 Chief Justice Gleeson and Justices McHugh, Gummow and Hayne stated:

In the situation where the Tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate . . . the Act did not confer upon the Tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.

Whether the plaintiff has an appropriate case to be pursued in reliance on section 48B or section 416 or section 417 or otherwise as mentioned in argument is not an issue of this application.

As to the issue of delay, the plaintiff argues that the extension of time should be granted because the delay in making the present application arises from the “conduct of the respondent” (quoting Justice McHugh in Marks at 474 paragraph 16) in the sense that the plaintiff’s application is essentially based upon the publication of the DFAT report by the Tribunal after the Tribunal hearing. However, this submission is misconceived. The Minister was not responsible for the plaintiff’s delay in bringing the application before this Court. There is no basis for claiming that the Minister has, in any way, delayed the plaintiff’s making of the present application.

The plaintiff seeks to explain the delay on the basis that he was unable to retain legal representation due to a lack of funds, was unable, as a lay person, to identify the points sought to be argued in the present application and was not properly advised about his case until the appointment of his current legal representation. It was also submitted on behalf of the plaintiff that he has been diligently and promptly seeking relief elsewhere, that this justifies the delay in bringing this application.

The plaintiff was legally represented before the Federal Magistrates Court, the Federal Court and in his application for special leave to this Court. Therefore, his claim that he was not able to bring the present application due to a lack of access to legal representation is difficult to accept.

In relation to the plaintiff’s submission that he was pursuing relief elsewhere, this demonstrates that the plaintiff has already had recourse to the judicial power of the Commonwealth in respect of the decision of the Tribunal. The institution and final disposition of those proceedings, coupled with the delay, coupled also with the want of any arguable case, constitutes sufficient reason to refuse the application for an extension of time within which to bring the present proceedings. It is unnecessary to consider the issues of res judicata, estoppel, Anshun estoppel or abuse of process. The application for an extension of time should be refused. The plaintiff’s further amended application for an order to show cause should be dismissed with costs.

The orders I make are:

1. The plaintiff’s application for an extension of time under section 486A(2) of the Act is refused.
   
2. The plaintiff’s further amended application for an order to show cause is dismissed.
   
3. The plaintiff is to pay the first defendant’s costs of the application.
   

Now, Mr Krohn, that leaves – when you have a moment – the non-publication order which you seek.

MR KROHN: Thank you, your Honour. I should check the affidavits just to be sure that I have it in the proper form, if I may, your Honour.

HER HONOUR: Yes. Do you have any objection to some time being given for the purposes of preparing an appropriate order, Mr Knowles?

MR KNOWLES: No, your Honour. There is no objection to that and as I indicated earlier, the first defendant’s position is that - - -

HER HONOUR: You will not be opposing it.

MR KNOWLES: - - - we neither oppose nor consent.

HER HONOUR: I think care should be taken with it, Mr Krohn.

MR KROHN: Yes, thank you, your Honour.

HER HONOUR: As I say, I will be in chambers during the course of the entire day so hopefully it is something which could be dealt with today.

MR KROHN: Yes, thank you, your Honour.

HER HONOUR: Can that be done just on the papers, Mr Knowles, if you neither consent nor oppose, or is there the need - - -

MR KNOWLES: It certainly would seem, to the first defendant, that it could be done on the papers.

HER HONOUR: Yes.

MR KNOWLES: Having said that - - -

HER HONOUR: On notice to you, or something like that.

MR KNOWLES: That is right. Really, provided that there is an opportunity for the first defendant to actually see what is proposed before - - -

HER HONOUR: And then give a written indication that there is no consent or opposition.

MR KNOWLES: Yes.

MR KROHN: Perhaps, because of that, your Honour, I wonder if your Honour would be minded then to leave just so there is time for me to do it and for the first respondent to consider it – for me to have until Monday to do that.

HER HONOUR: Yes. It does not have to be done today.

MR KROHN: No.

HER HONOUR: I will also be in chambers on Monday.

MR KROHN: Thank you, your Honour.

HER HONOUR: Yes. If it needs more time, take more time. It is your application for a non-publication order. I have assumed you wanted it dealt with urgently, but I completely accept that you want to do it with a degree of care.

MR KROHN: Thank you, your Honour. Is the best thing for me to telephone your Honour’s associate, or what is the best way?

HER HONOUR: Do it through the Registry, if you would not mind.

MR KROHN: If your Honour please.

HER HONOUR: Thank you. Adjourn the Court.

AT 12.13 PM THE MATTER WAS ADJOURNED