S1583 of 2003 v Minister for Immigration & Anor - [2006] FMCA 1256

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1583 OF 2003 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1256

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal erred in failing to consider applicant’s medical evidence as part of practical realities in facing relocation – whether Refugee Review Tribunal erred in having regard to unreliable independent country information – whether Refugee Review Tribunal denied applicant procedural fairness by failing to put to applicant adverse information upon which it relied – whether applicant’s conduct following notification of Refugee Review Tribunal decision was acquiescence by applicant in correctness of Refugee Review Tribunal’s decision – whether delay of 2 years unexplained and unwarranted.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417; 422B; pt.8 div.2

VEAL v Minister for Immigration (2005) 222 ALR 411
Ranginui v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1280
Kioa v West (1985) 159 CLR 550
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 3
Herijanto v Refugee Review Tribunal; Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2000] HCA 16
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 591
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Applicant:

APPLICANT S1583 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG715 of 2004

Judgment of:

Emmett FM

Hearing dates:

6 June & 16 August 2006

Date of last submission:

16 August 2006

Delivered at:

Sydney

Delivered on:

31 August 2006

REPRESENTATION

Counsel for the Applicant:

Mr D. Godwin

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Mr O. Young , Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG715 of 2004

APPLICANT S1583 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 March 1995. The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Ethnic Affairs (“the Delegate”) dated 15 June 1994. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The applicant is a 48 year old male who claims to be a citizen of India and of Sikh faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia he was employed as a farmer.
The Applicant arrived in Australia on 16 April 1989, having legally departed from India on a passport issued in his own name and a visitor’s visa issued on 16 April 1989.
On 25 November 1993, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Indian government due to his involvement in the All India Sikh Student Federation (AISSF).
On 15 June 1994, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Convention.
On 18 July 1994, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 9 March 1995, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 March 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The Tribunal proceeding

The Applicant attended a hearing on 15 February 1995 before the Tribunal and gave oral evidence.
Before the Tribunal, the Applicant made the following claims:
i)He joined the All India Sikh Student Federation (“AISSF”) in 1981 and became Vice President of his branch in 1984.
ii)In 1984 he attended demonstrations and was detained and asked questions about the future activities of AISSF and the whereabouts of the President. The Applicant claimed that the authorities did not let him sleep but otherwise did not mistreat him and he was released after a week.
iii)In 1987 the Applicant was detained again as a result of the Applicant’s participation in a protest in the Amritsar district on 4 June 1984. The Applicant was questioned as to the AISSF plans and their links with terrorism. The Applicant claimed that during this period of detention he was tortured and then released after two weeks when his family paid a bribe.
iv)After this incident the Applicant was “less overt in his participation” with the AISSF.
v)In 1989 in Reru the Applicant and another AISSF member were riding on a motorbike and when they approached a police check point they drove straight through as a result of which the police shot at them.
vi)His uncle is Dr Aulakh, President of the Council of Khalistan. Dr Aulakh left India many years before.
vii)In about 1992 the Applicant’s parents wrote to him that police had come to visit them and asked what the Applicant was doing and they replied they did not know.
viii)
He was suffering from post traumatic stress disorder and was on medication for that disorder. The Applicant furnished a medical report from Dr Chaudhary dated

13 February 1995 in support of this allegation.
The Tribunal accepted the Applicant as a witness of truth.
The Tribunal noted that the Applicant stated that if he were to return to India he would resume his work with the AISSF and that when he arrived at the airport he would be arrested by the police. The Applicant said he would have to rejoin the AISSF otherwise they would think he was working for the government. The Tribunal noted that it put to the Applicant that his membership of the AISSF would not be known elsewhere in India outside the Punjab, to which the Applicant responded that the AISSF is India wide.
The Tribunal noted it discussed with the Applicant the country information before it that indicated that in 1993 the situation in Punjab had stabilised and noted that the Applicant had responded “if the person is wanted by them, they will not spare him”.
The Tribunal noted that the Applicant’s parents and siblings all lived in Punjab.
The Tribunal accepted that the Applicant has a fear of persecution for reason of his political opinion and/or his religion and/or his membership of a particular social group.
In considering whether the Applicant’s fear is well founded, the Tribunal noted that the test is whether there is a real as opposed to remote chance of persecution.
The Tribunal identified with particularity the independent country information upon which it relied.
The Tribunal noted that, as at 7 April 1992, DFAT information disclosed that the AISSF is not a proscribed organisation in India and mere membership of, or support for the AISSF would not attract adverse attention from the authorities. However, the Tribunal also noted that Amnesty’s Punjab report detailed allegations that AISSF members have been tortured or illegally executed by the police. The Tribunal also noted that an ARBDC response dated 17 November 1993 disclosed that members of the AISSF are targeted for arrest by the Punjabi police if they are suspected of being active militants. The Tribunal also noted that AISSF members may also face attack from rival factions. The Tribunal further had regard to the history of the AISSF noting that it was banned by the Indian government between March 1984 and April 1985 and many of its members were arrested. The Tribunal noted that since the ban was lifted on 11 April 1985 the AISSF had split into a number of factions with varying degrees of militancy.
After having regard to the various country information, the Tribunal made the following conclusions:
“The Tribunal finds that while Punjab was troubled from the early 1980s, at the end of 1993 the situation settled and recently, the government has set in place certain measures to address the issue of human rights abuse in Punjab and elsewhere in India.”
Following general observations about the AISSF the Tribunal noted the specific claims made by the Applicant in relation to his detention in 1984 and 1987. The Tribunal found that the Applicant’s activities were not those of a terrorist, rather, he helped in administration in one of the branches of the AISSF as a Vice President and as one of thousands who attended demonstrations. The Tribunal also noted that after the Applicant’s detention in 1987 he remained in the Punjab at his home until 1989 without adverse consequences despite that period being a very troubled time for the Punjab. The Tribunal noted that the Applicant was not detained again.
The Tribunal noted that from 1987 the Applicant had held a valid passport yet did not leave the country for a further 18 months, and in fact left legally for overseas in 1989.
In relation to the Applicant’s claim of being shot at by police in 1989 at Reru, the Tribunal found that there was no evidence before it that the police were looking specifically for the Applicant or for AISSF members 1989. The Tribunal found that the incident was simply a random incident rather than targeting the Applicant for Convention reasons.
The Tribunal also noted that, apart from visits from the police asking about the Applicant’s whereabouts and his activities, the Applicant’s family in India has not suffered any adverse consequences since the Applicant’s departure in 1989.
These matters, together with the Tribunal’s finding that “the situation in Punjab has settled down”, led the Tribunal to conclude that the Applicant did not face a real chance of persecution if he were to return to Punjab and therefore his fear was not well founded.
Despite that conclusion, the Tribunal went on to consider the situation were the Applicant to return to India. The Tribunal considered in particular the Applicant’s claim that he would be detained at the airport as soon as he arrived. The Tribunal acknowledged material that suggested that police do detain certain people who are on a wanted list on arrival in India.
However, the Tribunal also had regard to information from a Professor Robin Jeffrey, Professor of Politics, La Trobe University who wrote on 2 December 1994 that he was not aware of Sikhs being detained on return to India unless the Indian authorities have criminal charges against them. He also stated that he was not aware of any evidence to suggest that Sikhs in the Punjab are being persecuted for being Sikhs and that, in any event, the Punjab is run by Sikh government under a Sikh Director-General of Police and a heavily Sikh police force.
Those reports, together with the Applicant’s legal departure from India and his lack of criminal record and lack of India wide political profile, or even Punjab wide, led the Tribunal to give no weight to the Applicant’s assertion of likely detention at the airport were he to return.
The Tribunal also found that, even if the Applicant was to return to his AISSF duties if he were to return to India, he was unlikely “to be regarded as high profile or a terrorist on return to India” because he was neither a high profile AISSF member nor a terrorist before he left India and that in Australia he had “not been overtly fervent in his political stance”. The Tribunal also noted that the AISSF is not an illegal organisation in India and that “the situation in Punjab has settled.” The Tribunal did not accept that the Applicant would continue his involvement with the AISSF if he were to return to India, especially if he relocated outside Punjab.
The Tribunal concluded that it was reasonable for the Applicant to relocate within India.
However, in arriving at that conclusion, the Tribunal did not have regard to the Applicant’s medical evidence of post traumatic stress disorder and the effect that may have on his condition were he to return to India. The Tribunal in concluding that relocation was reasonable for the Applicant, noted that he had no political profile as such, that he was single and has adapted to life in Australia and speaks not only Punjabi but a little Hindi and English. The Tribunal also noted that the Applicant is a farmer by trade although his work experience has not been limited to farming. For example, in Australia he has worked not only in farms but also as a casual cleaner and in a factory as a machine operator. For those reasons, the Tribunal found it reasonable to expect that the Applicant could relocate in India if he did not wish to return to Punjab.
The Tribunal concluded that the Applicant did not have a well founded fear of persecution for a Convention reason and therefore was not a person to whom Australia owed protection obligations.

The proceeding before this Court

The Applicant was represented by Counsel, Mr Godwin before this Court and relied on a second further amended application filed, by consent, at the hearing. The grounds relied upon are in the following terms;
“(a) That the RRT decision was affected by jurisdictional error:
The RRT failed to reach its decision on whether it was satisfied that Australia had protection obligations to the applicant in a manner which was supported by findings based on logical grounds or probative evidence:
Particulars
The applicant is a Sikh from the Punjab in India. The applicant presented the RRT with a history of being tortured by the police in the Punjab as an AISSF activist. The RRT accepted the applicant as a witness of truth and accepted that this torture had occurred. The critical reason why the RRT affirmed the decision of the respondent was its conclusion that by the end of 1993 the situation in the Punjab had settled. The evidence cited by the RRT in fact supports the conclusion that the police in the Punjab in 1993 and 1994 were repressing even more severely anyone who had previously been considered an activist. The RRT’s conclusion was also contradicted by other evidence in the possession of the RRT which it failed to cite in reaching its conclusion.
(ba) The RRT failed to afford the applicant procedural fairness
(i) when it made the finding that the situation in the Punjab had settled.
(ii) When it failed to inform the applicant of the substance of the information in the letter from Professor Jeffrey to the tribunal dated 2 December 1994;
(vii) When it failed to inform the applicant of the substance of the information in DFAT cable ND 83583 dated 7 April 1992
(b) The RRT addressed the wrong question when it considered whether the situation in the Punjab had settled. The correct question was what was the likelihood of the applicant being mistreated again by the police in the Punjab, and, in particular, what was the current attitude of the police in the Punjab to persons who the police had previously mistreated as activists.
(c) The RRT’s conclusion that the Applicant could relocate in India failed to take into account the applicant’s medical condition, and thereby failed to take into account relevant considerations and the RRT failed toconduct [sic] the review in accordance with the requirement that it act judicially.
Particulars
The applicant supplied the RRT with medical evidence that he suffered from post traumatic stress disorder as a result of his torture in the Punjab. The medical evidence indicated that in Australia the applicant felt safe and free of torture from the regime in India. A return to anywhere in India was likely to aggravate his condition. This evidence was fundamental to the issue before the RRT. The RRT made no reference to this evidence in assessing whether it was reasonable to expect the applicant to relocate in India.”
Essentially, Counsel for the Applicant distilled the Applicant’s grounds into three main areas:
i)That the Tribunal erred in that it denied the Applicant procedural fairness by failing to provide to the Applicant copies of the independent information upon which it relied or otherwise to put squarely to the Applicant the content of that information.
ii)That the Tribunal erred in finding that the “situation in Punjab has settled down” where the evidence before it was overwhelmingly that it had not.
iii)That the Tribunal erred in failing to have regard to the Applicant’s medical evidence of post traumatic stress disorder in concluding that it was reasonable for the Applicant to relocate in India.
I propose to deal with the Applicant’s contentions in the order identified above.

Ground 1 – Allegation that the Tribunal denied the Applicant procedural fairness

The Tribunal hearing took place in 1998, well before the introduction of s.422B into the Act
The Tribunal concluded that the Applicant did not have a well founded fear of persecution. Counsel for the Applicant contended that neither independent information, being DFAT cable dated 7 April 1992 and Professor Jeffrey’s advice, nor the substance of that information, was put fairly to the Applicant by the Tribunal to enable him to comment properly upon it.
In considering whether the Applicant’s fear was well founded, the Tribunal gave no weight to the Applicant’s claim of arrest and detention were he to re-enter India. In making that finding, the Tribunal relied on the words of Professor Jeffrey as quoted in the decision as follows:
“I think Sikhs whose deportations have been in the news overseas stand a chance of being watched once they return to India. I have not, however, seen evidence to suggest that there is an elaborate or systematic surveillance of such people. I am not aware of their being detained on return unless the Indian authorities have criminal charges against them…
I do not know of any evidence to suggest that Sikhs in Punjab are being persecuted for being Sikhs…Punjab is run by a Sikh government under a Sikh Director-General of Police and a heavily Sikh police force.”
Procedural fairness demands that the Tribunal afford an Applicant an opportunity to address the substance of credible, relevant and significant material within the possession of the Tribunal which was not provided to the Tribunal by the Applicant and which was adverse to his case (VEAL v Minister for Immigration (2005) 222 ALR 411 at 416 - 417.)
In considering whether the Applicant’s claim was well founded, the Tribunal also had regard to the DFAT cable dated 7 April 1992. The Tribunal stated “According to DFAT, the AISSF itself is not a proscribed organisation in India and mere membership of, or support for, the AISSF would not attract adverse attention from the authorities (DFAT Cable ND83583 dated 7 April 1992).” Counsel for the Applicant contended that this information should have been put to the Applicant for comment, for 2 reasons:
i)because it is the subject of a letter from the Department of Immigration and Ethnic Affairs in which it is stated that DFAT cable is no longer to be referred to when deciding refugee status and was neither authoritative nor thorough; and
ii)because it was part of the reasons upon which the Tribunal found that the Applicant did not have a well founded fear of persecution.

Both the 7 April 1992 cable and Professor Jeffrey’s advice were used by the Tribunal in making its adverse findings in respect of the Applicant’s claims.
The question is whether or not there was “meaningful disclosure” to the Applicant of adverse material that was credible, significant and relevant and used by the Tribunal in rejecting the Applicant’s claim of a well founded fear of persecution. Weinberg J in Ranginui v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1280 at [31] stated that:
“What is required to discharge that duty depends on the circumstances of the particular case. However, there is authority for the proposition that where a decision-maker has received material that may be adverse to a particular person, the opportunity to comment upon that material should be given “clearly and unequivocally”. To put the matter another way, there must be “meaningful disclosure”…”
In respect of Professor Jeffrey’s material, that information would appear to be the source relied upon by the Tribunal member in rejecting, as well founded, the Applicant’s fear of re-entry into India. The First Respondent concedes that the only exchange disclosed in the transcript that relates to that material is as follows:
“Mem:      So what would you do if you went back to India, what sort of involvement would you have?
Int:           …
Mem:        Would you join the AISSF again or the Akali Dal - -
Int:           …
MrS:         (Int) When we left from the airport what activities can I do?
Mem:        Well, just supposing, supposing the country information that comes from other places is right, and your personal fears are wrong. Supposing the country information that says that, you know, people who are not terrorists don’t have an India-wide profile or, you know, warrants out against them. If they’re worried about going back to Punjab they can relocate somewhere else. Supposing that information is right, and you went back to India, would you see yourself as still involved in the AISSF, or would you join the Akali Dal, or would you settle quite happily.
Int:           …
MrS:         (Int) I will have to maintain links with the All India Sikh Students Federation………??”
However, Counsel for the Applicant contended that the context in the transcript discloses an exchange about whether or not the Applicant was intending to still be involved in the AISSF, rather than whether he was likely to come to the attention of the authorities at the airport and be detained.
To my mind the exchange relied upon by the First Respondent as putting Professor Jeffrey’s information to the Applicant is not a clear and unequivocal putting of Professor Jeffrey’s advice to the Applicant for his comment. Moreover, it contains suppositions beyond the question of whether or not there are outstanding criminal charges in respect of the Applicant.
In relation to the 7 April 1992 DFAT Cable, the Tribunal considered this material in the context of considering whether or not the Applicant’s fear of persecution is well founded. The First Respondent did not suggest that that part of the information had been put to the Applicant in terms. In the circumstances, to use that information to found the adverse finding without having given the Applicant an opportunity to meet it, was a denial of procedural fairness to the Applicant.
The Applicant also stated in his affidavit that the documents referred to above, being the 7 April 1992 cable and the Professor Jeffrey advice, were not shown to him.
Whilst the Applicant was cross examined on both affidavits, Counsel for the First Respondent informed the Court that he did not intend to make any submission on any evidence arising from cross examination of the Applicant. In any event, it was not put to the Applicant that in fact he had been given those documents by the Tribunal.
Accordingly, I accept that those documents were not given to the Applicant by the Tribunal at any time. The documents were used by the Tribunal in making adverse findings. The Tribunal did not put the substance of those documents to the Applicant in any meaningful and fair way. The documents were credible, significant and relevant and were used by the Tribunal in rejecting the Applicant’s claim of a well founded fear of persecution and, in the circumstances, should have been disclosed to the Applicant (Kioa v West (1985) 159 CLR 550 at 628-629, per Brennan J). Such conduct by the Tribunal resulted in a denial to the Applicant of procedural fairness.
In denying the Applicant procedural fairness, the Tribunal committed jurisdictional error.

Ground 2 – Allegation that Tribunal erred in finding that the situation in Punjab had settled

Having regard to my reasons given above in relation to Ground 1, it is not necessary to deal with Ground 2.

Ground 3 – Allegation Tribunal erred in failing to consider Applicant’s medical evidence in considering relocation

It is well settled that the question in respect of relocation is whether the person can relocate to another part of the country and whether that person could reasonably be expected to do so (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 269-27 per Black CJ). In considering whether internal relocation is reasonable, consideration must be given to the practical realities facing the applicant (NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22]).
The Applicant referred the Court to SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 3, where Madgwick J found that a failure by the Tribunal to consider both psychological and physical difficulties in having regard to the practical realities facing an applicant amounted to jurisdictional error in that the Tribunal had failed to ask itself “the right questions”.
The Tribunal, in the case before me, did not consider the Applicant’s psychological medical evidence. The Tribunal made it clear that it regarded that evidence as relevant only to humanitarian grounds which were not relevant to the question of refugee status.
The medical report stated that the Applicant will need psychological and stress counselling. The report noted that the Applicant “has a genuine fear of death if returned to India.” The medical conclusion was based on the conclusion by Dr Gill that the Applicant had suffered from illegal detention and illegal torture by police. The Tribunal does not find that the letter is of no weight, the Tribunal simply does not consider it at all in the question. Further, the basic matters referred to in the letter in terms of the Applicant’s allegations of what happened to him in India were accepted by the Tribunal.
The First Respondent submitted that the evidence in respect of the Applicant’s post traumatic stress syndrome did not discriminate between his ability to return to Punjab and his ability to relocate to any other part of India. That may be so, however, the Tribunal was obliged to consider that evidence as it goes directly to a practical reality facing this particular Applicant were he to relocate in India.
For those reasons the Tribunal’s finding that the Applicant could relocate within India is affected by jurisdictional error in that the Tribunal failed to have regard to all of the practical realities facing the Applicant, particularly the medical evidence provided by the Applicant that he was suffering from post traumatic stress disorder.

Delay

In the event that jurisdictional error is found, the First Respondent submitted that the Court should not exercise its discretion to grant relief to the Applicant, having regard to the Applicant’s conduct, both in his delay in seeking judicial review of the Tribunal’s decision dated 9 March 1995 until 15 March 2004 and in his acquiescence with the Tribunal’s decision.
The First Respondent contended that the period of unreasonable delay was from April 1995 to, at least, October 1997, although the delay really continued until September 1998 when the Applicant joined the proceeding in the High Court of Australia known as Herijanto v Refugee Review Tribunal; Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2000] HCA 16 (“Herijanto”). Thereafter the First Respondent does not contend that the delay was so unexplained and unreasonable that the Applicant should be denied relief.
The Applicant in an affidavit, affirmed 16 May 2006, stated that, on 4 April 1995, he requested the First Respondent to exercise his powers under s.417 of the Act. Section 417 of the Act allows the First Respondent to substitute a more favourable decision for an applicant where it is in the public interest to do so. On 9 May 1995, the First Respondent wrote to the Applicant informing him that his application was rejected.
The Applicant also stated in his affidavit that in 1996 he consulted Bobby Bahr at Parish Patience Solicitors to advise him on “what to do about my case.” On 7 October 1997 the Applicant said that he was informed by Parish Patience that they were commencing a class action in the Federal Court, that case being Macabenta v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 591 (“Macabenta”). The Applicant then applied to become a member of that class action on about 13 October 1997.
The Applicant stated in his affidavit that, on 10 September 1998, he applied to become a member of the Herijanto class action in the High Court.
The Applicant stated in his affidavit that, on 21 December 1998, Parish Patience informed him that the Macabenta proceeding had been dismissed by the Full Court of the Federal Court and that an application for special leave to appeal the decision to the High Court was being made.
The Applicant stated in his affidavit that in 1999 he was a member of the class action in the High Court known as Muin v Refugee Review Tribuna; Lie v Refugee Review Tribunal [2002] HCA 30. On 8 August 2003 the High Court handed down its decision in that case and on

25 November 2003 the High Court granted leave to class members to file an application for orders nisi.
On 29 May 2003 the Applicant filed his application for orders nisi with the High Court and in December 2003 those proceedings were remitted from the High Court to the Federal Court. The Applicant filed his application in the Federal Magistrates Court on 15 March 2004.
The Applicant also relied on an affidavit affirmed by him on 5 June 2006 in which he stated that he did not accept the correctness of the decision of the Tribunal and that in 1995 he had no work rights and limited financial resources and did not seek legal assistance. Further, he further said that in 1996 he combined with a group of friends and engaged Parish Patience to advise on what further action could be taken.
Counsel for the First Respondent submitted that by his s.417 application and by joining the Macabenta proceeding, neither of which sought to attack the Tribunal’s decision, the Applicant acquiesced in the decision of the Tribunal.
Further, the First Respondent submitted that there was no reasonable explanation for the delay between when the Applicant was informed in May 1995 that his s.417 application was rejected and October 1997 when he joined in the Macabenta proceeding. Certainly, the only evidence from the Applicant is that he consulted Parish Patience in 1996. However there is no evidence before this Court as to the nature of the advice sought or the nature of the advice given. The only explanation for the delay by the Applicant is that he had limited financial resources because he was not allowed to work, but that in 1996 he combined with a group of friends to engage Parish Patience to advise on what further action could be taken.
One commences such consideration in the light of the proposition that, in the event that a decision of the Tribunal is invalid for want of procedural fairness, in the absence of any delay, waiver, acquiescence or unclean hands on the part of the Applicant, there is no reason to withhold discretionary relief. However, delay is certainly a ground upon which constitutional writ relief may be refused. (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) at [84] and [211]; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389). McHugh J in SAAP at [80] observed:
“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.”
In considering the delay by the Applicant for 2 years in filing an application for judicial review by this Court of the Tribunal’s decision and the importance of finality of administrative decisions, I have regard to the comments of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) at 495 in which he said the following:
“Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are 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 that respect, the present case, although important to the applicant, is not as important as many other cases.”
The nature of constitutional writ relief, as referred to by McHugh J in Ex parte Marks, makes it clear that one must consider the public interest in there being efficacy in public acts, decisions and judgments which cannot be allowed to become “hostage of an applicant’s search for favourable legal advice’’ (Ex parte Marks at 496).
At the heart of the exercise of any judicial discretion must be consideration of the overall interests of justice
Whilst the delay of inactivity is just over 2 years, I do have regard to the fact that the Applicant does offer some explanation for his inactivity over the relevant period. The Applicant has not made any further application to the Minister pursuant to s.417 of the Act since April 1995. Further, in light of the sworn evidence of the Applicant that he did not accept the correctness of the Tribunal’s decision, I am not satisfied that, in making the s.417 application and joining the Macabenta proceeding, the Applicant was intending to accept the correctness of the decision. Rather, the Applicant appears to have followed whatever advice was given to him at the time.
In the circumstances, I do not infer from the Applicant’s conduct that he was acquiescing in the correctness of the Tribunal’s decision.
In the Applicant’s conduct of delay between May 1995 and October 1997, I do note that the Applicant had gone to the trouble, at least, to help himself by appointing an adviser to assist him with his application for a protection visa and had sought further advice promptly following the affirmation by the Tribunal of the Delegate’s decision. I accept the Applicant’s sworn evidence that he again sought advice in 1996 from solicitors, although there is no evidence before me of the nature of the advice sought or given. However, I have regard to the fact that the First Respondent did not seek to rely on any of the cross examination of the Applicant, nor did counsel for the First Respondent ask me to draw any inference that may be available in respect of the lack of further detail of the Applicant’s approach to solicitors in 1996. Accordingly, I draw no inference.
In the circumstances, whilst there are 2 periods of inactivity by the Applicant (May 1995 to an unspecified date in 1996; and from that unspecified date in 1996 to September 1997), he does proffer an explanation of a lack of financial resources and access to legal advice, in a context of having readily sought advice in the past. Moreover, the 2 year period of delay relied upon by the First Respondent, whilst by no means insignificant, is peppered by some activity, being the s.417 application and the approach to solicitors in 1996, and, to my mind, is not at the most extreme end of delay. Of course, the nature of constitutional writ relief, as referred to by McHugh J in Ex parte Marks, makes it clear that one must consider the public interest in there being efficacy in public acts, decisions and judgments which cannot be allowed to become “hostage of an applicant’s search for favourable legal advice’’ (Ex parte Marks at 496).
Accordingly, in balancing the interests of justice to the community in having such administrative decision making finalised and the interests of the Applicant in having an opportunity to have his claims heard and considered according to law, I have particular regard to:
i)the delay between May 1995 and October 1997, which is a concerning period of delay, even accepting that the Applicant sought advice from solicitors in 1996;
ii)the particular conduct of this Applicant as disclosing some real activity in seeking the advice of a migration agent in his protection visa application and before the Tribunal, the fact that he sought advice promptly following the Tribunal’s decision resulting in the s.417 application, the seeking of further advice in 1996 and the pursuit of rights from September 1997;
iii)the fact that the Tribunal decision was affected by 2 jurisdictional errors, one of which was a denial of procedural fairness to the Applicant.
In the circumstances, I do not regard the Applicant’s delay as so unwarranted, unexplained and unreasonable as to deny the Applicant the discretionary relief that would allow him an opportunity to have his claims determined according to law,

Conclusion

The Tribunal’s decision is not a privative clause decision because it is affected by jurisdictional error.
Accordingly, the decision of the Tribunal should be quashed and the matter should to be remitted to the Tribunal to be determined according to law.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 23 August 2006