S1029 of 2003 v Minister for Immigration

[2008] FMCA 1605

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1029 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1605

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. 

Migration Act 1958 (Cth), ss.417, 422B, 424A, 430, 477

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1
Kioa and Others v West and Others (1985) 159 CLR 550
Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565
Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966
NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1478
SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122
SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911
SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176
WACB v Minister forImmigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94

Applicant: APPLICANT S1029 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:  REFUGEE REVIEW TRIBUNAL

File Number: SYG 2853 of 2007

Judgment of: Barnes FM

Hearing date: 14 November 2008

Delivered at: Sydney

Delivered on: 14 November 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed. 

2. The applicant pay the costs of the first respondent fixed in the sum of $5,400. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2853 of 2007

APPLICANT S1029 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 21 November 1997 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. This matter has a lengthy history which it is convenient to set out at this stage.

2. The applicant arrived in Australia in February 1995 and lodged an application for a protection visa in February 1996.  The application was refused and he sought review by the Tribunal by application received on 31 October 1996.  He provided a home address and also nominated an adviser to whom he wished copies of correspondence to be sent. 

3. By letter dated 3 October 1997 the Tribunal invited the applicant to attend a hearing on 11 November 1997.  He attended the hearing.  Further information was provided to the Tribunal in support of the application for review.  The hearing record in the Court Book records that the hearing commenced at 10.05am and finished at 10.55am and that the applicant had the assistance of an interpreter.

4. By decision of 21 November 1997 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.  The Tribunal summarised the applicant's claims as set out in written submissions to the Department and Tribunal and his evidence at the Tribunal hearing.  It referred to his original claim that he had left Lebanon because he had been subjected to religious and political harassment.  He claimed that he was a Maronite (Roman Catholic) living in a predominantly Moslem town.  His family had moved for a time to a Maronite town that was a Phalangist stronghold.  He claimed that when they returned the villagers assumed that he was a partisan of the Christian Phalangists and subsequently of the Christian Lebanese Forces (LF).  He claimed he received verbal abuse and death threats, that he was “boycotted” so that he could not follow his trade as a form worker and that he could not gain protection from the authorities. 

5. The applicant claimed that he was wounded in 1989 and 1990 during the civil war in Lebanon.  He spent six months in Australia in 1993.  He claimed that in late 1994 he was detained, interrogated and tortured for three days by the Lebanese Army acting under orders from the Syrians, was asked about his contacts with the LF and about hidden armaments and that thereafter he was constantly followed, under surveillance and harassed.  The Tribunal continued: “He stated he was able to depart from Beirut airport only because he had a contact who could facilitate his departure and pay bribes so that he could pass through the security checks.” 

6. The Tribunal recorded that at the hearing the applicant had acknowledged that he was only an “ordinary” member of the LF.  He stated that “he could not relocate from the Muslim village where his family has land because there was nowhere in Lebanon that a Maronite Christian supporter of the L.F. could be safe.”  He stated that his occupation was not farming but as a form worker in the building industry, that he was discriminated against because he was a Maronite Christian and so could not find employment.  The Tribunal summarised the applicant's claim as a claim based on the applicant's former involvement with the LF. 

7. The Tribunal referred to the fact that the applicant had provided an “undated letter from the Mayor of his town stating that he had come to the attention of Lebanese security forces who were interested in [his] political activities and beliefs and who were now seeking him” and to aspects of country information about the situation in Lebanon, the Lebanese Forces, the current level of armed conflict in Lebanon and check points and airport security. 

8. The Tribunal found that the information it referred to suggested that the authorities in Lebanon sporadically targeted members of the LF based on their association with the now banned organisation. The information was said to suggest that it was “usually higher ranking members of the organisation's military or political branches, or people who had undertaken certain activities during the civil war or who are perceived to be acting against policies of the Syrian or Lebanese Governments, who are most often targeted, there is information which shows that often ordinary supporters and members are caught up in the random and sporadic arrests.  Most of these people are released relatively quickly – though again there are reports of mistreatment of people in detention by the authorities and evidence that sometimes people are held for longer periods on false charges or without proper legalities being observed.” 

9. However, the Tribunal found that on his own evidence the applicant was an “ordinary” member of the LF, that the wounds he suffered were incurred at the height of factional fighting between the Army and the LF and that his brief period of detention was at a period of high civil conflict.  It found that given the low level of civil conflict in Lebanon at the time of the decision and the low level of the applicant's involvement with the LF, the chance of him being persecuted by the Lebanese government or by the Syrians was remote.  It found the fact he was able to gain exit permits to depart Lebanon and had departed Beirut through Lebanese government airport checks in 1993 and 1995 indicated that he would not appear to be “wanted” by the Lebanese or Syrian authorities.  In making this finding the Tribunal took into account independent evidence about checkpoints and airport security.  The Tribunal did not believe that the applicant was able to pass through airport security only because of assistance given to him by someone of influence who also took bribes to enable him to escape. 

10. The Tribunal had regard to changed circumstances in the almost three years since the applicant had left Lebanon and evidence about the decreased activity by the government against the LF.  It was not satisfied that at the time of the decision or in the reasonably foreseeable future the applicant had a real chance of Convention-related persecution in Lebanon. 

11. The Tribunal did not believe the applicant's claim that there was nowhere in Lebanon that he as a Maronite Christian supporter of the LF could feel safe.  It found that his vocation as a form worker meant that he was not restricted to employment in the village where he said he faced harassment from Muslims.  The Tribunal referred to independent evidence and found that given the economic developments now occurring in Lebanon the applicant had the option of relocation in Lebanon should he wish to distance himself from those he feared.

12. The Tribunal concluded that it had considered the applicant's claims individually and cumulatively but was not satisfied that at that time or in the reasonably foreseeable future he had a real chance of persecution for a Convention reason in Lebanon because of his past association with the LF.  It was not satisfied that his fears were well-founded and found that he did not satisfy the criterion for the grant of a protection visa. 

13. On 10 December 1997 the applicant sought judicial review of the Tribunal decision in the Federal Court of Australia.  It is apparent from the material before the Court that he was legally represented in those proceedings.  The application stated that the Tribunal decision was received by the applicant on or about 28 November 1997. 

14. On 14 July 1998 O'Connor J ordered that the application be dismissed and the applicant pay the respondent's costs.  This followed a notice of discontinuance having been filed on 24 June 1998 apparently by the solicitor on behalf of the applicant.  An unsealed copy of the notice of discontinuance appears in the Court Book, dated 22 June 1998 and appears to be signed by the solicitor for the applicant, “Harrisons the Lawyers.”

15. On 10 December 1999 the applicant became a party to the Muin/Lie class action in the High Court of Australia.  Pursuant to orders made by Gaudron J on 25 November 2002 a draft order nisi was filed in the name of the applicant on 23 May 2003 in the High Court seeking relief in respect of the 1997 Tribunal decision.  That application was remitted to the Federal Court in accordance with Gaudron J's orders.  However a notice of discontinuance was filed in the Federal Court on 23 April 2004.  It appears from the copy of the notice in the material before the Court (as an annexure to the affidavit of Brin Anniwell sworn on 12 November 2007) that it was filed by the lawyers for the applicant and signed by a solicitor on behalf of the applicant.

16. Thereafter (at least from 19 May 2004) a number of applications were lodged on the applicant’s behalf seeking Ministerial intervention under s.417 of the Migration Act 1958 (Cth). The first application was unsuccessful (as at 12 July 2005). In August 2005 the applicant then wrote to the Minister requesting the exercise of his discretion to grant him a temporary work visa, referring to the unsuccessful s.417 application by his lawyer. In October 2005 he sought that he be permitted to lodge a business visa application in Australia. His requests were unsuccessful. On 25 July 2006 a request for Ministerial intervention on behalf of the applicant was made by Mr Toufic Laba Sarkis. That was unsuccessful, as was another such request made in June 2007. The applicant was informed that the last request had been unsuccessful on 23 August 2007.

17. On 28 August 2007 the applicant filed another application for review of the delegate's decision to refuse him a protection visa with the Tribunal.  His authorised recipient was Mr Laba Sarkis who again asked the Minister to intervene by letter of 29 August 2007.  In that request Mr Laba Sarkis stated that the applicant had told him that he was aware of an application before the Federal Court and that had he paid a “huge amount of money for that court case to his solicitor and to the Australian Government Solicitor and was never told of the outcome by his solicitor nor did he authorise anyone to withdraw the case on his behalf.”  Mr Laba Sarkis also stated that the applicant had lodged a request for review with the Refugee Review Tribunal and that he wished to exercise his right and attend a hearing as such opportunity did not happen before (notwithstanding that the 1997 Tribunal decision recorded that the applicant had attended a hearing).

18. The Tribunal decided on 3 September 2007 that it did not have jurisdiction to conduct a further review of the delegate's decision. 

19. The applicant commenced proceedings in this Court on 14 September 2007 seeking review of the 1997 Tribunal decision.  In the application the response to the question "Date when notification of the decision was received by the applicant" is "unknown".  The applicant filed an amended application on 2 January 2008. 

20. The first respondent raised a preliminary issue as to whether or not the application was competent and whether this Court had jurisdiction in respect of the application. It was submitted that the applicant had received actual notification of the 1997 Tribunal decision by virtue of a letter from the Refugee Review Tribunal dated 21 November 1997 (a copy of which is before the Court as an annexure to the affidavit of Ms Anniwell sworn on 1 July 2008). It was submitted that that letter constituted actual notification of the decision within s.477 of the Migration Act and that in light of the provisions of the Migration Litigation Reform Act (2005) Item 42 Schedule 1 the applicant had been notified of the decision before 1 December 2005 and was deemed to have been notified of the decision on 1 December 2005 so that the time periods in s.477 ran from that date. It was submitted that as this application was not made within 84 days of 1 December 2005 (see ss.477(1) and 477(2)) this Court had no jurisdiction in respect of the application and it should be dismissed as incompetent.

21. In Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565 the Full Court of the Federal Court suggested that actual notification required physical delivery to the applicant of the written statement of reasons. The solicitor for the first respondent submitted that a distinction could be drawn between this case and the circumstances in SZKKC because at the time of this Tribunal decision there was a different statutory regime applicable in relation to giving an applicant a decision.  As there was a case pending in the Full Court of the Federal Court dealing with a similar issue the hearing was adjourned until judgment was delivered in SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176.

22. SZKNX involved a Tribunal decision made at a time when the legislation was in the form that applied at the time of the Tribunal decision in issue in this case. At that time s.430 of the Act required the Tribunal to prepare a written statement setting out certain matters and s.430(2) required the Tribunal to “give” the applicant a copy of the statement prepared under s.430(1) within 14 days after the decision was made. Regulation 4.40 provided ways in which a statement of reasons could be given to an applicant. It was taken to be duly “given” to the applicant if posted to the applicant’s residential address provided in the application for review.  However as the Court recognised in SZKNX at [17], s.477 refers to actual notification of a Tribunal decision.

23. The Full Court in SZKNX referred to earlier authority in WACB v Minister forImmigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94 and SZKKC in relation to the concept of actual notification in s.477 at [17] – [22]), but pointed out that in those cases the relevant applicant had commenced proceedings within the specified time after coming into physical possession of the decision and reasons of the Tribunal.

24. In SZKNX the Federal Magistrates Court had found that the applicant had given the Tribunal's letter and decision which had been sent to that applicant by registered mail in February 1999 to a firm of solicitors who subsequently acted for him in legal proceedings. The Full Court of the Federal Court referred to the terms of the solicitor's letter to the Minister in March 1999 which quoted from the Tribunal decision. It found the conclusion inescapable that those lawyers had the Tribunal decision and had been given that document by the applicant prior to 17 March 1997 (at [24]). On that basis the Full Court found that there should be a finding that the Tribunal “gave” the decision to the applicant some time before 17 March 1999. Importantly, notwithstanding the absence of physical delivery by the Tribunal by handing a copy of the decision to the applicant in person (cf SZKKC at [37]) the Court stated at [25]:

    Irrespective of how the Tribunal has complied with its obligation under s 430(2), if an applicant has physically received a copy of the Tribunal’s decision and reasons, as has happened in the present case, there has been actual notification of the decision for the purposes of s 477.

25. The Court in SZKNX was satisfied that the applicant had physically received a copy of the Tribunal's decision before 17 March 1999 and that there had been actual notification for the purposes of s.477. Hence the application for judicial review filed in April 2007 was out of time and the Federal Magistrates Court had no jurisdiction.

26. The first respondent submitted on the basis of SZKNX that the Tribunal in this case could actually notify the applicant by posting the Tribunal decision to him and also that I should be satisfied that he received a copy of the decision of the Tribunal with the letter dated 21 November 1997.  The applicant confirmed in cross-examination that he was living at the address to which that letter was addressed at the time of the letter, but denied receiving the letter of 21 November 1997 enclosing a copy of the Tribunal decision. 

27. It was submitted that I should find on the evidence before me that on the balance of probabilities the applicant did receive the Tribunal letter dated 21 November 1997 and hence that there had been actual notification of the Tribunal decision.  It was pointed out that that there was no indication that the letter was returned to the Tribunal and submitted that there was no other reason to consider it was not received.  It was further submitted that I should give the applicant's denial that he received the letter little weight, given his evidence that he could not read English and that he was unlikely to pay much attention to Tribunal letters because his solicitor would also receive Tribunal letters and it was his solicitor's practice to write separately to him about such letters.  It was also submitted that as it was more than ten years since the events in question the applicant's recollection of whether he received the letter was likely to be unclear and that in cross-examination the applicant had shown a propensity not to be totally frank.  This was said to be evidenced by the fact that at one point he claimed that he had been unaware that he had been unsuccessful before the Tribunal until he received the Court Book and at another point claimed that he did not instruct anyone to commence the 1999 Federal Court proceedings.  It was submitted that this was not credible.

28. The first respondent submitted that there was evidence that the letter was sent by the Tribunal to the applicant and that I should infer that it had been received by him and hence that the Tribunal had “given” him a copy of its statements of reasons in compliance with s.430 and that as in SZKNZ the applicant had been actually notified within s.477 of the Act at some time shortly after 21 November 1997. It was conceded, however, that the applicant had not admitted that he received the letter on a specific date and also that actual notification was not the only inference the Court could draw from subsequent events.

1. Notwithstanding that, as the first respondent contended, there were some unsatisfactory aspects of the applicant's evidence in cross-examination, I am not, in the particular circumstances of this case, persuaded that I should be satisfied that the applicant was actually notified of the decision for the purposes of s.477 in the manner contended for by the first respondent even if the Tribunal should be taken to have met its obligation under s.430(2) and reg.4.40 to “give” the applicant a copy of its statements of reasons. 

2. The copy of the letter dated 21 November 1997 from the Tribunal file is the only evidence as to what occurred at that time.  In contrast to the situation in SZKNX (at [11]) there is no evidence or indication on the face of this letter that it was sent by registered mail. Nor is there any evidence, for example from Tribunal mail records, as to posting of the letter.

3. It is the case that in December 1997 solicitors for the applicant commenced proceedings seeking judicial review of the Tribunal decision in the Federal Court.  However, again in contrast to the situation in SZKNX, there is an alternative explanation apparent on the material before the Court, given that the copy letter dated 21 November 1997 bears a notation that it was “cc'd” to the applicant's adviser at the address provided by the agent.  Hence it cannot be said that the conclusion is “inescapable” that because the subsequent legal proceedings were commenced in relation to the Tribunal decision, he gave his solicitors the letter and decision of the Tribunal, particularly given his reliance on his adviser to respond to or take action and notify him about Tribunal letters.

4. The circumstances are not such that the applicant “must have” had the Tribunal reasons for decision in his physical possession before the Federal Court proceedings.  While I do not consider that it is essential that there be such an “inescapable” conclusion to make a finding in relation to actual notification, this is part of all the circumstances to take into account, together with the absence of evidence as to posting of the document by the Tribunal (other than what appears on the face of the letter itself), the existence of an alternative explanation for what occurred thereafter and the applicant's consistent denials as to physical receipt of the decision from the Tribunal, albeit his evidence in other respects was not entirely consistent.

5. Hence in the particular circumstances of this case I am not persuaded that the application is incompetent. It is therefore necessary to consider the substance of the application and the grounds in the amended application. In that respect I note that on 5 December 2007 I ordered that the first respondent provide the applicant with a copy of Tribunal tapes and that the applicant file and serve any affidavit evidence on which he proposed to rely, including any transcript of the Tribunal hearing, by specified dates. The applicant did not file any further affidavit evidence or a transcript of the Tribunal hearing. He had filed and relies on his affidavit of 13 September 2007. He gave oral evidence and was cross-examined in relation to the issue of receipt of the Tribunal decision. No written submissions were filed by the applicant, who in oral submissions sought merits review in relation to his circumstances in Lebanon. 

6. The first ground in the amended application is that the Tribunal failed to consider “in accordance with” Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, “whether it would be reasonable, in a practical sense, for the applicant to relocate.”  The Tribunal is under an obligation to consider the reasonableness of relocation and in particular any practical impediments or obstacles to relocation raised by an applicant where it accepts that an applicant has a well-founded fear of persecution in part of his home country.  In this case however the Tribunal, which regarded the applicant’s claim as a claim based on his former involvement with the LF, concluded, as set out above, that it was not satisfied that he had a real chance of Convention-related persecution in Lebanon.  If this finding addressed the whole of the applicant's claims then it was not strictly speaking necessary for the Tribunal to go on to consider the issue of the reasonableness of relocation.  However in this case the applicant had claimed that he was a Maronite Christian supporter of the LF.  Insofar as his claims may be seen as based, at least in part, on his religion as a Maronite Christian, the Tribunal finding about the absence of a well-founded fear of persecution might not be seen as extending to that part of his claim that was based on religion. 

7. There was no suggestion in these proceedings by the applicant that there was a separate basis for his claims not considered by the Tribunal.  However if, contrary to the Tribunal's account of the clarification of the basis for the applicant's claims in his written submissions and at the hearing, a claim based purely on the applicant's religion as a Christian arose on the facts, that was addressed by the Tribunal findings in relation to relocation to another part of Lebanon.  This finding clearly carried with it the implication that the applicant could relocate (as his family had done at one time) to a mainly Christian part of Lebanon.  I am not persuaded that there is a jurisdictional error on this basis. 

8. According to the Tribunal, the applicant claimed that he could not relocate from the Muslim village where his family had land because there was nowhere in Lebanon that a Maronite Christian supporter of the LF could be safe, that he was a form worker and not a farmer, that he was discriminated against because he was a Maronite Christian and that he could not find employment.  However having regard to country information about the situation in Lebanon, the Tribunal did not accept the applicant's claim that there was nowhere in Lebanon that he as a Maronite Christian supporter of the LF could feel safe.  It found that the fact he was a form worker meant that he was not restricted to employment in the village where he stated he faced harassment from Muslims and also that given the economic development occurring in Lebanon he had the option of relocation within Lebanon should he wish to distance himself from those he fears.  Hence the Tribunal considered the obstacles to relocation raised by the applicant and what might reasonably be expected of him with respect to relocation in Lebanon in accordance with its obligations in SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659 and Randhawa.  Ground one in the amended application is not made out.

9. The second ground in the amended application has two aspects. The first is that the Tribunal “relied on wrong information.”  The example given is a document described as “[CX21239] of 10 December 1996” which is DFAT information on airport security in Beirut.  The use of independent country information and the weight to be given to particular items of information is a matter for the Tribunal.  As Hely J stated in SZANK vMinister forImmigration and Multicultural and Indigenous Affairs [2007] FCA 1478 at [16]: “The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.”  This part of ground two does not establish jurisdictional error. 

10. It is also claimed in ground two that the Tribunal “failed to put adverse information to the applicant”.  This aspect of ground two is considered together with ground four which is that the Tribunal “failed to give the applicant a reasonable chance to respond to material taken into consideration in reaching its conclusion.  The Tribunal acted contrary to the principles of natural justice and procedural fairness.” 

11. It is well established that procedural fairness requires that a person whose interests are likely to be affected by an exercise of power is to be given an opportunity to deal with matters adverse to his interests that the decision-maker proposes to take into account (see Kioa and Others v West and Others (1985) 159 CLR 550 at 628 per Brennan J). This Tribunal decision was made before the introduction of ss.424A and 422B and common law natural justice is relevant.

12. The applicant did not elaborate on what material he claimed was not put to him, except that in submissions in reply he said that the Tribunal did not ask him how he managed to get out of the airport through government airport checks.  He suggested to the Court that he would have said that he had bribed to do so.  However, as set out above, the Tribunal stated that the applicant referred to bribery but that it did not accept this explanation.  Insofar as it is suggested that that particular issue was not raised at the Tribunal hearing (and perhaps this might be seen more to raise an argument about whether dispositive issues were put to the applicant in the SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 sense) I am not persuaded that a lack of procedural fairness in that respect is established. Contrary to the applicant's contention, I am satisfied on the Tribunal’s account of what occurred at the hearing, that the issue of information about airport checks was in fact raised and discussed at the hearing, that the applicant had the opportunity to respond and that his response was considered, as is apparent from the express reference to this issue in the Tribunal's account of the applicant's claims and in its findings and reasons.

13. More generally the applicant has not established that the Tribunal failed to put adverse material to him in the hearing such as independent country information or the substance of such information.  He did not file a transcript of the Tribunal hearing and he did not give any evidence to the effect that such adverse material had not been raised with him. In NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 the Full Court of the Federal Court stated at [21]: “In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.”

14. It is the case that in SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 Rares J was prepared to draw an inference that a particular matter had not been raised with an applicant at a Tribunal hearing, based on what the Tribunal set out in its statement of reasons as to what occurred at the hearing. His Honour found that it was clear from the High Court decision in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1 that the Tribunal decision record alone is evidence of what happened at the hearing.

15. However in SZJYA the Tribunal had made a fairly detailed summary of evidence at the hearing.  It was in those circumstances that Rares J was satisfied on the Tribunal's own account of its hearing and procedures that it had not raised with the applicant anything to suggest that the genuineness of her conduct was in issue. Nor did the delegate's decision on its face give rise to such an issue in SZJYA. 

16. However in this case the content and structure of the Tribunal decision is not such as to lead to such an inference. The hearing record indicates that the Tribunal hearing occupied some 50 minutes of time. It is clear that the Tribunal account of what occurred in the hearing is not and does not purport to be a complete account of what occurred at the Tribunal hearing, although it is also clear that there was a discussion about the applicant being only an “ordinary” member of the Lebanese Forces and also of the circumstances in which he was able to depart from Beirut Airport, both matters on which there was relevant country information. 

17. The first respondent submitted formally that the decision in SZJYA, which is subject to a special leave application to the High Court, was in error and not correct in relation to the law and, in particular, that it was not correct not to follow the approach in NAOA.  For present purposes, proceeding on the basis that SZJYA is correct, I am nonetheless not persuaded that in this case an inference can be drawn from the Tribunal reasons for decision that adverse material was not raised with the applicant in the Tribunal hearing as the applicant contends in the amended application.  Ground four and the second aspect of ground two are not made out. 

18. Ground three is that the Tribunal “advised the applicant it had looked at all the papers relating to his application, when it had not.”  This appears to be an attempt to raise the sort of argument raised in Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966 in which the High Court held, among other things, that there was a lack of procedural fairness where an applicant was mislead into thinking that the Tribunal has considered particular relevant information and as a result did not ensure that such information was placed before it.

19. The applicant has not established the necessary facts or basis for such a ground.  In particular, he has not identified the papers he claims the Tribunal did not look at or established the Tribunal did not look at such papers.  There is no evidence that he was misled or as to what he would have done if he had not been mislead (see NADR of 2001v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). This ground is not established.

20. The last ground in the amended application is misconceived. It is that there was a failure to comply with s.424A of the Migration Act. Section 424A came into affect on 1 June 1999. It had no relevance to the decision of the Tribunal in issue in these proceedings. This ground is not made out.

21. Finally, if contrary to my view the Tribunal did fall into jurisdictional error, this is a case in which I consider that the Court should exercise its discretion to refuse relief having regard to all the circumstances, in particular the significant delay in bringing these proceedings and the lack of a satisfactory explanation for a considerable part of that delay. 

22. Even if one accepted the applicant's suggestion in cross-examination that he was not initially aware that the Federal Court proceedings of 1997 had been initiated on his behalf (notwithstanding his acknowledgement that he paid his former solicitor and his adviser's acknowledgement that he paid the Australian Government Solicitors' costs), he clearly knew the proceedings had ended.  He gave evidence that he did not know that the Federal Court proceedings were withdrawn, but thought he had lost them.  He claimed that no one told him he had lost the case until he received a letter telling him he had to pay the Court fees.  However those proceedings were dismissed by O'Connor J in July 1998. 

23. Thereafter (in December 1999) the applicant joined a class action which was finalised in April 2004.  Even if one accepted that he was not kept fully informed of what was occurring by his earlier legal representatives, he has not provided a satisfactory explanation for the extent of the delay thereafter.  The applicant lodged a further application for review with the Tribunal in August 2007.  

24. I have had regard to the principles considered by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20. In that case their Honours noted at [30] that an applicant for judicial review of a decision made in that case (made more than seven years earlier), was required to offer a satisfactory explanation why the application was not made earlier.

25. In this case the decision was made nearly ten years before these proceedings were commenced. The applicant’s first request for Ministerial intervention was refused in July 2005. His subsequent attempts to obtain a temporary work visa and requests to the Minister about such matters do not explain his failure to pursue judicial review of the Tribunal decision in relation to his protection visa application after “discovery” that his Federal Court proceedings had been discontinued. Taken at its highest the applicant’s affidavit filed in support of his application for review is not such as to provide a satisfactory explanation for the period of time thereafter when the applicant had the assistance of a relative in relation to his migration matters. Moreover, insofar as he claims that judicial review proceedings had been initiated and conducted prior to that time without his knowledge, there is no evidence that he made any real effort to ascertain the fate of any proceedings, whether that be the Tribunal decision or the Federal Court case or other legal proceedings. Such a claim does not sit well with his 2005 acknowledgement of his lawyer’s lack of success in obtaining Ministerial intervention. 

26. I have also had regard to the caution of the Federal Court in relation to the exercise of a discretion to refuse relief expressed in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122. However this is not a case in which it might be said that the Tribunal failed to comply with statutory obligations to accord an applicant a fair hearing (see SZIZO at [97] and the discussion of imperative statutory obligations).

27. The applicant's explanation for the delay from April 2004 (when the second judicial review proceedings were discontinued) in particular after mid 2005 when he was aware that his s.417 applicant was refused is unpersuasive. At the least, contrary to his claim he did not know his Federal Court case was withdrawn until he received the 2007 Tribunal decision, he knew that his initial Federal Court case was at an end and I am not persuaded that he was not aware that the proceedings remitted to the Federal Court by the High Court had been discontinued in 2004. Hence even if jurisdictional error is made out, the application should nonetheless be refused in the exercise of my discretion.

28. Accordingly, the application should be dismissed and I will hear submissions in relation to costs. 

RECORDED:   NOT TRANSCRIBED

1. The applicant has been unsuccessful and there is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the first respondent.  The amount sought is appropriate in light of the hearing time occupied by these proceedings, the extent of the material before the Court and the nature and extent of the issues raised in these proceedings. 

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  2 December 2008