Hassen v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1036

FEDERAL COURT OF AUSTRALIA

Hassen v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1036

MIGRATION – enlargement of time for application for Constitutional writs directed to Refugee Review Tribunal – earlier dismissal by consent of application for Federal Court review of Tribunal decision – whether awaiting outcome of application for Minister’s decision under s 417 Migration Act reasonable explanation for delay

Migration Act 1958 (Cth) s 417

Commonwealth; Ex parte Marks (2000) 177 ALR 491 followed
Re Ruddock; Ex parte LX [2003] FCA 561 followed
Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 followed
Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192 followed
Port of Melbourne Authority v Anshun (1981) 147 CLR 510 followed

LAKMI HAFSA IQBAL HASSEN (AKA LAKMI KANGARATNAM KANDIAH) v THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
V541 of 2003

HEEREY J
23 SEPTEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V541 OF 2003

BETWEEN:	LAKMI HAFSA IQBAL HASSEN aka LAKMI KENGARATNAM KANDIAH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	23 SEPTEMBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for enlargement of time is refused.

2.The application for review is dismissed.

3.The applicant pay the respondent’s costs.

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	V541 OF 2003

BETWEEN:	LAKMI HAFSA IQBAL HASSEN aka LAKMI KENGARATNAM KANDIAH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	23 SEPTEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant seeks an enlargement of time for an application for Constitutional writs and certiorari in relation to a decision of the Refugee Review Tribunal (the Tribunal) handed down on 15 January 1999.  The application was initially filed in the High Court.  On 26 November 2002 it was remitted by order of Hayne J to this Court. 

2. The applicant is a Sri Lankan national of Tamil ethnicity, now aged 38.  She arrived in Australia on 30 March 1997 and lodged an application for a protection visa in the following month.  On 17 December 1997 that application was refused.  She sought review by the Tribunal.  On 15 January 1999 the Tribunal dismissed her application and affirmed the refusal.

3. The relevant lapse of time is therefore between 15 January 1999 and 29 September 2000, when the applicant filed her application in the High Court, a period of 21 months.  The relevant times fixed by the High Court Rules for the filing of applications are six months for certiorari (O 55 r 17) and two months for mandamus (O 55 r 30).  Time may be enlarged under O 60 r 6(1).

4. In the meantime, on 15 February 1999, the applicant lodged an application in the Federal Court for review of the Tribunal’s decision.  On 24 August 1999 that application was dismissed by consent.  In an affidavit sworn in support of the present application the applicant says that at the time she lodged the Federal Court application her permission to work had been withdrawn and she was dependent on her uncle and his family for financial assistance.  She found it “extremely difficult” to proceed with the Federal Court application. 

5. Her solicitors advised her that “given (her) financial circumstances and the then limited scope of review under Pt 8 of the Migration Act 1958, (she) should withdraw the Federal Court application and instead seek the intervention of the respondent Minister under s 417 of the Migration Act”. She further deposes that her solicitors advised her that since the Tribunal had found her identity to be that of a Muslim “an appeal should be made to the respondent Minister concerning (her) identity, so that a proper consideration of (her) claims could be undertaken”. Accordingly, on 3 September 1999 she made a request to the Minister under s 417. That application was refused on 11 September 2000.

6. The applicant’s identity as a Muslim was indeed central to the application before the Tribunal.  She claimed to be a Hindu Tamil under the name Lakmi Kangaratnam Kandiah.  However, her passport was that of a Tamil Muslim, Lakmi Hafsa Iqbal Hassen.  The Tribunal found that, contrary to the applicant's assertion, the passport was a valid document and the applicant’s true identity was disclosed in it.  Generally speaking the significance of the religious persuasion of the applicant is that a Hindu would ordinarily be regarded as more likely to be a supporter of the Liberation Tigers of Tamil Eelam and therefore more likely to be subject to persecution than a Tamil Muslim.  Tamil Muslims are treated more sympathetically by the Sinhalese majority and the government authorities in Sri Lanka.

7. The principles applicable to an enlargement of time are not in dispute.  A recent authoritative statement appears in the decision of McHugh J in Re Commonwealth; ex parte Marks (2000) 177 ALR 491 at [13]-[16].

8. In my opinion the application for enlargement of time should be refused. The delay of 21 months is very substantial in itself. Objectively speaking, the explanation for that delay, namely the s 417 application, is not a reasonable one. As I said in Re Ruddock; Ex parte LX [2003] FCA 561 at [42], the terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggests that it is to be reserved for rare cases and that it usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.

9. Moreover, an application under s 417 naturally gives rise to the inference that the applicant has accepted the validity, if not the correctness on the merits, of the Tribunal's decision: see Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9].

10. Apart from the long delay and the lack of a reasonable explanation for it, I do not consider that there is a reasonable arguable case for judicial review.  The essential question for the Tribunal was the true identity of the applicant.  This was a question of fact.  The Tribunal had the passport assessed by an expert body, the Department's document examination unit.  The Tribunal also considered in detail the evidence proffered by relatives of the applicant and, for reasons which seem to be persuasive, were satisfied that their evidence was false and of necessity must have been concocted. 

11. The Tribunal went on to consider in the alternative whether the applicant faced a real chance of persecution as a Tamil Muslim.  Again, this was a question of fact and I am not persuaded that the Tribunal made any error of law in the way it addressed that issue. 

12. Moreover, the consent dismissal of the Federal Court application would prevent issues raised in that application from being re-litigated: Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192. To the extent that matters sought to be raised in the present application were not raised in the Federal Court proceeding, the rule in Port of Melbourne Authority v Anshun (1981) 147 CLR 510 would bring about the same result.

13. The application for enlargement of time is refused and the application for review is dismissed with costs. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .

Associate:

Dated:             1 October 2003

Counsel for the Applicant:	R Orr
Solicitor for the Applicant:	Ravi James
Counsel for the Respondent:	C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 September 2003
Date of Judgment:	23 September 2003