Bachara, Rana v The Minister for Immigration & Ethnic Affairs

[1997] FCA 1475

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Appeal - Extension of time in which to appeal - Application listed before single judge - Whether should be referred to Full Court - Satisfactory explanation for lateness - Whether extension should be refused on ground that no prospects of success on appeal.

Migration Act 1958 ss 420(2)(b), 430(1)(a) and (b), 476(1)(a)

Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 applied
Hughes v National Trustees [1978] VR 257 applied
Mitchelson v Mitchelson (1979) 24 ALR 522 cited
Lek v The Minister (1993) 43 FCR 100 applied
Huluba v The Minister (1995) 59 FCR 518 cited
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied

RANA BACHARA, BALVIR BACHARA, MADEEP BACHARA and SUKHDEEP BACHARA v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
VG 127 OF 1997

SUNDBERG J
19 DECEMBER 1997
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG127  of   1997

BETWEEN:

RANA BACHARA
FIRST APPLICANT

BALVIR BACHARA
SECOND APPLICANT

MANDEEP BACHARA
THIRD APPLICANT

SUKHDEEP BACHARA
FOURTH APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	19 DECEMBER 1997
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent’s taxed costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG127 of 1997

BETWEEN:

RANA BACHARA
FIRST APPLICANT

BALVIR BACHARA
SECOND APPLICANT

MANDEEP BACHARA
THIRD APPLICANT

SUKHDEEP BACHARA
FOURTH APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
RESPONDENT

JUDGE:	SUNDBERG J
DATE:	19 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The first applicant is a national of the Republic of India, from the Punjab, who entered Australia in 1986.  The second applicant is his wife.  The third and fourth applicants are their children.  The wife and children entered Australia in 1988.  In September 1991 the first applicant applied for a protection visa.  His wife and children were included in the application.  A delegate of the Minister refused the application.  The Refugee Review Tribunal affirmed the Minister’s decision.  On 24 October 1997 Beaumont J dismissed an application for review of the Tribunal’s decision.  The applicants wished to appeal to the Full Court.  Their solicitor advised them that they had twenty‑eight days in which to do so.  Within that period they instructed their solicitor to proceed with the appeal.  In fact the applicants had only twenty‑one days in which to appeal, and their instructions to their solicitor were given about four days after the expiration of that period.  They have applied for an extension of time in which to appeal.  See Federal Court Act 1976 s 25(2)(b) and O 3 r 3(1) of the Rules.

Counsel for the applicants first submitted that I should direct that the application be determined by a Full Court.  This was because the respondent proposed to resist the application on the ground that an extension of time would be pointless because the applicants had no prospects of succeeding on an appeal.  Counsel for the applicants relied on the following passage from the judgment of the Full Court in Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 at 588:

It is, in our view, open to an applicant to request that an application for leave be listed either before a single judge or a Full Court, as the applicant prefers.  Ordinarily, if such a request is made, we would expect the registry to accede to it ....  If the registry does not accede to the applicant’s request, it is open to the applicant to ask the court or judge before whom the matter is listed to consider referring it to a Full Court or a single judge (as the case may be).  It is then for the judge or the Full Court before whom the matter is listed to consider whether the matter is more appropriately dealt with in the manner suggested by the applicant.

Although this passage purports to deal with an application for leave to appeal, I think the headnote is correct in treating the Full Court’s remarks as directed to an application for an extension of time in which to appeal.  That was what was in question in Wati, and immediately before the passage relied on by the applicants the Court referred to that part of s 25(2) of the Federal Court Act which provides that applications for an extension of time in which to institute on appeal “may be heard and determined by a single judge or a Full Court”.

The passage relied on does not assist the applicants, because it deals only with the case where the registry has not acceded to an applicant’s request that the application be heard by a single judge or that it be heard by a Full Court.  Their solicitor made no request to the registry that the matter be dealt with by a Full Court.  The application for an extension was made returnable before a single judge.  However, from an earlier passage in Wati it appears that, in a case such as the present where, as in Wati, the solicitor did not advert to the election provided by s 25(2), the judge before whom the application is listed may refer it to a Full Court. The Full Court said, at 587:

It was open to the appellant, through her legal representatives, to make any representations she wished as to whether the application for leave to appeal out of time should be heard by a single judge or the Full Court.  Had the appellant’s legal representatives taken this approach, there is, of course, nothing to suggest that either the registry or Davies J (or any other judge before whom the matter may have been listed) would not have given appropriate consideration to any request or submission the appellant wished to make.  The appellant’s failure to give any indication of her preference to the registry, or to make a submission to Davies J, was attributable to the failure of her legal representatives to advert to the operation of the Federal Court Act and the [Rules].  This is not a failure that can be laid at the door of the registry or the court.

Davies J was the judge before whom the application for extension came and who dismissed it.

In my view there are no “sound reasons” why the application should be referred to a Full Court.  See Wati at 588. An examination of the applicants’ prospects on an appeal is not a difficult task justifying resort to the spread of experience provided by a Full Court. There are no difficult points of law involved, and the facts are not complicated. Further, to refer the matter to the Full Court could involve that Court considering the matter twice, once at the extension stage and again on an appeal. That would not be a provident use of the Court’s time and resources. For the foregoing reasons, which I did not formally pronounce at the time, I indicated that I would not refer the application to Full Court, but would hear it myself.

The applicants have provided an acceptable explanation for their delay.  Their solicitor confirms that he told them they had twenty‑eight days in which to appeal.  But the respondent has opposed the grant of an extension on the ground that the appeal has no prospects of success.

A matter to be taken into account in deciding whether to grant an extension of time is an applicant’s prospects of success on the appeal should an extension be granted.  As McInerney J said in Hughes v National Trustees [1978] VR 257 at 264, “it would be unjust to the respondent to put him to the trouble and expense of an appeal if the judgment sought to be attacked is plainly right”. See also Mitchelson v Mitchelson (1979) 24 ALR 522 at 524 and Wati at 580, 587. I approach the matter on the basis that since the applicants’ delay in appealing has been satisfactorily explained, I should grant the extension of time unless I am satisfied that they have no prospects of success on the appeal.

The applicants wish to advance four grounds of appeal. The first is that Beaumont J erred “in finding that the Tribunal, in adopting a statement made by another Tribunal member, focused on the appellants’ actual circumstances when it came to consideration of the appellants’ situation”. This ground is based on the fact that the Tribunal set out and adopted descriptions of the general situation in the Punjab at relevant times contained in a decision of another member of the Tribunal in a case involving another Indian from the Punjab region. This was said to show that the Tribunal had failed to bring an independent mind to the matter at hand and had thus failed to comply with the “procedures” laid down in ss 420(2)(b) and 430(1)(a) and (b) of the Migration Act 1958. See s 476(1)(a). I will assume, without deciding, that the complaint is of a failure to observe “procedures” within s 476(1)(a). Beaumont J referred to Lek v The Minister (1993) 43 FCR 100 at 122 and Huluba v The Minister (1995) 59 FCR 518 at 529, and said that while it is appropriate for a decision‑maker to adopt a summary of a general situation prevailing in a country at a particular time, it is not proper to adopt, without more, statements made by another decision‑maker by way of a description of the specific circumstances of a particular applicant. His Honour said that the summary adopted by the Tribunal in the present case was no more than a description of the situation in the Punjab at relevant times. He said that when the Tribunal came to address the specific situation of the first applicant, it focused on his actual circumstances.

In Lek at 122 Wilcox J, speaking of the use by decision‑makers of information devised by others, said:

But, if an inference is to be drawn from standard provisions, it is not enough to point to mere use.  It is necessary to consider the content of the adopted provisions.  The standard provisions widely used in this case were either statements of law or summaries of the substance of documentary material concerning conditions in Cambodia.  The full documentary material was before each delegate.  He or she had to decide whether or not to accept it.  It seems to me that delegates who chose to accept that material could adopt already formulated summaries of its relevant content, without exposing themselves to the reproach of having surrendered their independence of judgment.  It is significant that [the applicant’s solicitor’s] analysis [of the standard provisions] does not suggest that the delegates relied on standard provisions in connection with claims relating to applicants’ personal experiences or circumstances.

The distinction drawn in that passage between adopting already formulated summaries of the substance of documentary material concerning conditions in an applicant’s country of origin, and relying on standard principles in connection with the specific circumstances of the applicant’s case, was noted by Beaumont J.  In the present case the Tribunal adopted the former course.  This was plainly not a surrender of the Tribunal’s independence of judgment.  As his Honour said, when the Tribunal came to consider the first applicant’s situation, it focused on his actual circumstances.  His Honour quoted the following passage from the Tribunal’s reasons:

The Applicant and his family have been absent from the Punjab since 1986 and 1988 respectively.  At that time, as the information cited above indicates, the Punjab was wracked by terrorism and brutality.  However, for the past four or five years this has subsided and the situation improved markedly.

The Applicant was a low‑level member of the Akali Dal; indeed at one stage in the determination process, he indicated that he was not a member at all.  I accept that he may have been caught up in the general sweep of anti‑Sikh actions by the Indian police and military forces in the mid 1980s.  However, it is clear that since the early 1990s the situation in the Punjab has improved to the extent that it can be said that a person in the Applicant’s position would face only a very remote chance of serious harm for his past political activities on return to India.  Furthermore, the fortunes of the Akali Dal in recent years and the atmosphere of peace during recent elections add weight to this conclusion.  This is not to say that no one would be at risk at present; I accept that those individuals with a high level of activism in the recent past and those who are high‑profile human rights campaigners may be at risk of attention from the police.  However, I am satisfied that the Applicant does not come within these categories.  I am unable to find that the Applicant’s fear of persecution is well‑founded.  I conclude therefore that the Applicant could return to the Punjab once again without serious incident.

If an extension of time were granted, the first ground of appeal would have no prospect of success.

The next ground is that Beaumont J erred in holding that the Tribunal correctly applied the “real chance” test.  His Honour set out this passage from the Tribunal’s reasons:

To come within this definition, an applicant must first be outside his or her country of nationality.  Second, the applicant must have a well‑founded fear of being persecuted.  Chan Yee Kin v Minister for Immigration and Ethnic Affairs ... establishes that a person has a well‑founded fear of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a convention‑related reason (Minister for Immigration and Ethnic Affairs v Wu Shan Lian ...). A ‘real chance’ is one that is ‘substantial’ (Chan’s case per Mason CJ at 389) or one that is not ‘remote or insubstantial’ (Toohey J at 407) or a ‘far‑fetched possibility’ (McHugh J at 429).

His Honour then set out the passage from p 407 of Toohey J’s judgment in Chan:

The test suggested by Grahl‑Madsen, a ‘real chance’, gives effect to the language of the Convention and to its humanitarian intendment.  It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.  It is a test that can be comprehended and applied.

His Honour observed that Toohey J’s observations were consistent with the reasoning of the other members of the Court.

The complaint made by the applicants fastened on the Tribunal’s conclusion that the first applicant “would face only a very remote chance of serious harm for his past political activities on return to India”.  It was submitted that the use of the word “remote” showed that the Tribunal misunderstood the “real chance test”.  Beaumont J said that when the reasons of the Tribunal were read as a whole, the submission had no substance.

It is plain from the Tribunal’s reasons that it understood the “real chance” test.  In the passage quoted above it distinguished between, on the one hand, a substantial chance of persecution and, on the other, a remote or insubstantial possibility or one that is far‑fetched.  It applied that test to the first applicant’s situation and concluded that the possibility of persecution was “very remote”.

It is not clear whether it was submitted to Beaumont J that the use of the words “only a very remote chance” involved a failure on the part of the Tribunal to speculate about the possibility of persecution or return.  The submission was made to me, and I will assume it was made to Beaumont J, though his Honour does not mention it.  A reading of the passage from the Tribunal’s reasons set out on page 4 of these reasons shows that this submission too has no substance.

If an extension of time were to be granted, the second ground of appeal would have no prospect of success.

The third and fourth grounds can be taken together.  They relate to material before the Tribunal which indicated that, in the opinion of those concerned, the present situation in the Punjab was serious and that, from the point of view of the first applicant in particular, it should be regarded as grave.  Beaumont J was of the view that the matters sought to be agitated were pure questions of fact.  He said that the weight of those opinions had to be measured against, and evaluated in the context of, other opinions expressed on the same topic, and that the Tribunal’s reasons, read as a whole, showed that it had addressed the correct legal question and committed no error of law in the process of reasoning or in the conclusion it reached.  His Honour added that the applicants were inviting the Court to revisit the facts and reach a conclusion different from that reached by the Tribunal.  This was not a course open to the Court.

It is clear that the Tribunal had regard to two bodies of opinion on the situation in the Punjab at the present time.  One was that derived from reports from sources such as the Australian Department of Foreign Affairs and Trade, the United States Department of State, human rights monitoring groups, and the opinions of academics and other experts.  This was the material summarised by another Tribunal member and adopted by the Tribunal in the present case.  This body of opinion disclosed that while ten years ago the situation in the Punjab was very bad, in the past four or five years the situation had improved markedly and terrorism and brutality had subsided.  The other body of opinion was that put forward by the applicants.  The Tribunal referred to this material.  It included information provided by a person who had visited the applicants’ home in India.  While there he was visited by the police who asked about the owner and whether he was in Australia.  The friend formed the view that it would not be good for the first applicant to return.  The Tribunal also referred to documents and newspaper cuttings from Sikh organisations concerning ill‑treatment of returnees and high‑profile Sikh activists, and to translations of newspaper articles regarding human rights violations in the Punjab.

The third ground of appeal is that Beaumont J erred in finding that the matters agitated by the applicants were pure questions of fact.  The fourth ground is that his Honour erred in holding that the Tribunal had addressed the correct legal position notwithstanding that the opinions expressed in the applicants’ material were neither measured against nor evaluated in the context of other opinions relied on by the Tribunal.  In my view there is no prospect of these grounds being successful on any appeal.  The Tribunal identified the competing bodies of opinion, and preferred the more comprehensive and official body.  His Honour’s conclusion that he was being invited to revisit “pure questions of fact” and to prefer the body of opinion that the Tribunal had rejected, was plainly correct.  He was being asked, in the most transparent way, to review the case on the merits.

For the foregoing reasons I am of the view that the applicants have no prospect of success on an appeal, and that to grant them an extension of time in which to appeal would be pointless.  The application is dismissed.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg

Associate:

Dated:            19 December 1997

Counsel for the Applicants:	T A Fernandez
Solicitor for the Applicants:	Nathan Legal Practitioner
Counsel for the Respondent:	P Booth
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 December 1997