S172 of 2003 v Minister for Immigration & Anor
[2007] FMCA 1208
•2 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S172 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1208 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – Tribunal’s decision not irrational or illogical – the possibility of remaining in one’s country of nationality and avoiding persecution by internal relocation and the possibility of remaining in one’s country of nationality and avoiding persecution by behaviour modification are different concepts – unwarrantable delay in commencing proceedings. |
| Migration Act 1958, ss.417, 474 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216 Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175 Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 |
| Applicant: | S172 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2291 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 February 2007 |
| Date of Last Submission: | 9 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. S. Emmett |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2291 of 2005
| S172 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in the High Court on 7 May 2003, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 18 April 2002 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 3 December 1999 refusing the applicant’s application for a protection visa.
The applicant’s application to the High Court was remitted first to the Federal Court and then to this Court. The application was dismissed on 14 November 2005 following a hearing in this Court but an appeal against that dismissal was allowed by consent and the proceedings returned to this Court to be reconsidered according to law.
At the subsequent hearing on 9 February 2007 the applicant amended the grounds on which he sought relief.
Background facts
The Tribunal described the applicant as follows:
The Applicant is aged in his late twenties. He came to Australia … in July 1998, in order to study at a university here. His university enrolment was cancelled because he was unable to pay the fees and he subsequently applied for a protection visa … on 19 October 1999. The course of the processing of this application for review has been somewhat complicated by the fact that the Applicant has been suffering from anxiety and mood disorders for which he has at various times been taking antipsychotic and antidepressant medication … (Court Book (“CB”) page 113).
The applicant claims to have been persecuted and to fear future persecution in Pakistan because of his perceived religious beliefs, his political affiliation and his work for the Pakistani Intelligence Bureau.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 5-19 of the Tribunal’s decision (CB 113-127). Relevantly, they are in summary:
a)the applicant’s grandfather was an Ahmadi, a member of a Muslim sect declared by a constitutional amendment to be non-Muslims in Pakistan. The applicant’s father’s religion was recorded in documents as Ahmadi but the applicant said that his father had abandoned the Ahmadi faith and the family were Sunni Muslims. The applicant claims that his family suffered from anti-Ahmadi prejudice in Pakistan because they were perceived as Ahmadis;
b)one of the applicant’s uncles had been shot three months before the applicant’s application for review because he was an Ahmadi;
c)the applicant claimed that two distant cousins, one of whom had been going to marry his sister, had been killed by religious fundamentalists in 1999 because they were Ahmadis;
d)the applicant’s family home in Wah Cantt had been stoned three times by religious fundamentalists calling his family Ahmadis and kafirs (unbelievers or infidels) and the applicant’s eldest brother had been attacked three times by religious fundamentalists between January and July 2000;
e)one month before the applicant left to come to Australia, the father of a friend of his who was an Ahmadi had been shot;
f)the applicant’s father opposed the imposition of martial law by General Zia ul-Haq in 1977 and the applicant claims that his father was “slow poisoned by the agencies” in 1981 because he was an Ahmadi and because he was affiliated with the Pakistan People’s Party (“PPP”). The applicant himself has been active in the PPP since 1988 and he worked for the government in the Intelligence Bureau between 1994 and 1996 when the PPP government led by Benazir Bhutto was in power;
g)while in the Intelligence Bureau he worked on madrassahs (religious schools) and chemicals smuggled from India for the processing of heroin;
h)the applicant claims that groups had been smuggling chemicals for the making of heroin from India into Pakistan. He said that they had used their money to get weapons and they had joined forces with the religious groups. He claimed that these groups had played a vital role in toppling the PPP government in 1996;
i)someone had leaked the information that he had been working on madrassahs and chemical smuggling and his family home and his eldest brother were attacked by religious fundamentalists because of his work for the Intelligence Bureau. His sister had also been harassed;
j)apart from the drug traffickers and the religious fundamentalists he feared no one else apart from people who had been kicked out of the Intelligence Bureau for their non-professional attitude and their affiliations with these groups;
k)the applicant said the
thing which really turned the agencies against me was my voicing against the interference in Afghanistan in the shape of making and sketching of Taliban. (CB 118).
The agencies had “snatched” all the documents the applicant had sent to his family to publish in the local newspapers and the applicant was scared that the agencies could involve him in a fabricated case and could torture him and eventually kill him in a police “encounter”;
l)the applicant said his family’s funds had been frozen as a consequence of political victimisation by the Income Tax Department; and
m)the Pakistani military government was not dealing with the people who were responsible for sectarianism and other fundamentalist and terrorist extremists.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
(a)the Applicant was and his family were Sunni Muslims and not Ahmadis and it was reasonable for the Applicant to relocate to another city in Pakistan to avoid any perception that he was an Ahmadi;
(b)political parties such as the PPP, were free to continue the activities they were engaged in prior to the coup and citizens were generally free to discuss public issues. There was nothing in the independent evidence to suggest that the military regime was biased against the PPP. Accordingly, the Applicant’s fear based on his political involvement in the PPP or his expression of political opinion was not well-founded;
(c)[the Tribunal] could not be satisfied that the Applicant would be persecuted now or in the reasonably foreseeable future by reason of his involvement in the court case regarding the rigging of the 1990 elections;
(d)there was a reasonable willingness on the part of the authorities in Pakistan to take action in respect of criminal acts committed by religious extremists and the law enforcement agencies were taking steps to detect, prosecute and punish the religious extremists responsible for criminal acts in Pakistan. Accordingly, the Applicant’s fear of being persecuted by religious extremists by reason of his work for the Intelligence Bureau, his political opinion or his religion if he returned to Pakistan was not well-founded;
(e)[the Tribunal] could not be satisfied that there was a real chance that the Applicant would be persecuted by drug traffickers as a result of his work at the Intelligence Bureau if he returned to Pakistan now or in the foreseeable future. There was nothing in the evidence that indicated that the government would encourage or condone reprisals against him by drug traffickers or people that had been “kicked out” of the Intelligence Bureau as claimed. There was nothing in the evidence to indicate he would be denied the same protection available to other citizens, such protection being of a level sufficient to remove the real chance of his being persecuted by these individuals;
(f)[the Tribunal] did not accept that his family had been financially ruined as a result of their involvement in the PPP;
(g)[the Tribunal] did not accept that the authorities in Pakistan or “the agencies” would involve the Applicant in a fabricated case or that they would torture or kill him in a police encounter; and
(h)taking into account the cumulative effect of the Applicant’s circumstances [the Tribunal] was unable to be satisfied that the Applicant had a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan now or in the reasonably foreseeable future.
The Tribunal was also of the view, in respect of the applicant’s claim to fear religious fundamentalists, that it was clear that their fight “is now with the Government” (CB 124) and thus, impliedly, not with individuals such as the applicant.
Proceedings in this Court
The grounds of relief sought in the amended application are pleaded as follows:
(a)The RRT made a jurisdictional error by making the following finding which was irrational, illogical or unreasonable:
(i)in response to the Appellant’s claim that he had a well-founded fear of persecution because he and his family were perceived to be of the Ahmadi faith, the RRT found that the Appellant did not have a well-founded fear because he and his family were sunni [sic] Muslims.
(b)In finding that the Appellant had insufficient reasons not to relocate to other parts of Pakistan, the RRT failed to apply the correct test for relocation as set out by the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442-443 to the effect that “the practical realities facing a person who claims to be a refugee must be carefully considered”, which involved the RRT having to consider how, in a practical sense, the Appellant could reasonably be expected to relocate within Pakistan.
(c)The RRT made a jurisdictional error by concluding that the Appellant was not entitled to protection because the Pakistani Government had “a reasonable willingness … to take action in respect of criminal acts committed by religious extremists” without considering whether the Pakistani Government had a reasonable ability or any ability to take such action.
Dealing with each of these grounds in turn:
The Tribunal’s finding that the applicant did not have a well-founded fear because he and his family were Sunni Muslims was irrational, illogical or unreasonable
The applicant submitted that the Tribunal asked itself the wrong question and failed to ask the correct question, namely whether the applicant and his family were perceived as being Ahmadi. However, that is the very question which the Tribunal did ask itself. As is recorded at [6] above, the Tribunal said that the applicant claimed:
… that his family suffered from anti-Ahmadi prejudice in Pakistan because they were perceived as Ahmadis. (CB 115).
When considering this claim the Tribunal referred to the issue of the applicant being potentially perceived as Ahmadi and it drew a distinction between the perception of the applicant and his family in their local area, where their history was known, and perceptions of the applicant were he to move away from his locality, in which case he would not be perceived as Ahmadi. As the Tribunal found:
I do not consider it will be obvious to anyone interacting with the Applicant that he is anything other than a Sunni Muslim.
(CB 120).As a consideration of pages 11 and 12 of the Tribunal’s decision record discloses, it is not correct to say, as the applicant has in his written submissions, that the Tribunal “based its conclusion that the applicant had no well-founded fear of persecution for being Ahmadi on its finding that the applicant was not Ahmadi”. At those pages, the Tribunal acknowledges the Ahmadi background of the applicant’s family and it also accepted that the applicant “and all his family are Sunni Muslims.” (CB 119). But, rather than concluding that this latter fact had the consequence that the applicant did not have a well-founded fear of persecution, it concluded that the absence of such fear was the consequence of him not being perceived as anything other than what he was.
Nor was the Tribunal’s finding to the effect of what appears in the particulars to this ground in the Amended Grounds of Relief, namely:
… the Applicant did not have a well-founded fear because he and his family were sunni [sic] Muslims.
What the Tribunal found was that the reason why there was no real chance of the applicant being persecuted as a consequence of his Ahmadi family background or any perception that they were Ahmadis was that, were they to relocate, it would not be obvious to third parties that the applicant was anything other than what he was, a Sunni Muslim. The Tribunal did not base its conclusion on what the applicant was but what he would be perceived to be – which happened to be the same thing.
The applicant further submitted that the Tribunal’s conclusion that he had no well-founded fear of persecution for a Convention reason was illogical and irrational because it was based on the conclusion that he was not an Ahmadi rather than on whether he was perceived to be Ahmadi.
For the reasons set out at [13] above, this submission is not made out. The Tribunal’s decision was based on the finding that the applicant would not be perceived as an Ahmadi if he relocated in Pakistan and there is no illogicality or irrationality demonstrated in the Tribunal’s decision on this point. The relevant facts and reasoning have been set out in [4] to [7] above and they disclose that the Tribunal’s conclusion on this issue was open to it on the information before it. Consequently, no jurisdictional error is demonstrated in relation to this part of this asserted ground of review.
The Tribunal failed to apply the correct test for relocation
In relation to the question of relocation the applicant submitted that:
a)although the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate it failed to do so because it did not consider how he would live, whether he could support himself, whether he would be able to see his family and whether there were support networks. The applicant submitted that the Tribunal’s considerations did not satisfy the tests in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 as discussed by Branson J in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37;
b)the Tribunal erred by asking, in the context of relocation, what it was reasonable to expect the applicant to do, rather than what the applicant would do, contrary to the authority of Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473;
c)in any event, the Tribunal made no positive finding that the applicant would be any less exposed to persecution if he relocated to a major city; and
d)to the extent that the Tribunal had impliedly concluded that the applicant would not be persecuted if he relocated, such a finding was illogical. The applicant asserted that it did not follow from the conclusion that a casual observer would not suspect the applicant to be Ahmadi that he would not be persecuted by the people from whom the applicant feared persecution.
Dealing with each of these elements of this ground in turn:
a)(i) In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs, Black CJ said that the question of whether the applicant’s fear was well-founded in relation to his country of nationality, not simply the region in which he lived, was not to be approached in a narrow way and it should be asked whether the applicant could reasonably be expected to relocate, not just whether he or she could. His Honour said:
In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered. (at 442)
(ii)In NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs, the Tribunal was found to have erred by failing to consider the practical realities of relocation for the applicant in that case and how, in a practical sense, the applicant could reasonably be expected to relocate within her country of nationality. Although the Tribunal in addressing relocation is not required to elaborate on every aspect of its practical application it must address the issue: SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216 at [22].
(iii)In this case, in considering the reasonableness of relocation the Tribunal observed that the applicant is well-educated and well-placed to integrate into any of the major cities in Pakistan, noting that by the time of the Tribunal hearing he had already been living apart from his family for some years. The Tribunal also observed that there would be nothing about his religious practices which would identify him as anything other than a Sunni Muslim.
(iv)Although the applicant submitted that a more detailed analysis was called for, it is clear that the Tribunal turned its mind to the necessary question and reached a factual conclusion which was open to it and which this Court cannot disturb.
b)(i) In respect of this part of this asserted ground of review, the applicant submits that in deciding whether it is reasonable for the applicant to relocate within his country of nationality to a location where he would not have a well-founded fear of persecution for a Convention reason, the Tribunal should have asked what the applicant would do, not what it was reasonable to expect him to do. In this regard, the applicant referred to the portion of the Tribunal’s decision where the following passage appears:
… even if there were a perception on the part of the community where his family lives that his family are Ahmadis, because the local community may be aware of his family’s Ahmadi family background and connections, I consider that it would be reasonable to expect the Applicant to avoid any persecution he may fear for this reason by relocating to one of the major cities in Pakistan. (CB 119).
(ii)The applicant submitted that the principle enunciated in the majority judgments in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs – that the Tribunal will err if it assesses a claim on a basis of what the applicant should do rather than what he or she will do and on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin (see also Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175 at [6]) – applied to the question of whether it was reasonable to expect the applicant to relocate. It was submitted that it was not sufficient for the Tribunal simply to consider whether there was a course open to the applicant which led to persecution being avoided; it also needed to ask what actually would happen and whether there is a risk of persecution if that occurs.
(iii)This argument conflates two concepts which should be kept separate. The first is the principle found in Randhawa’s case, which is the question of whether it is reasonable to expect an applicant to relocate within his or her country of nationality. The second is the principle found in S395’s case, namely that in determining whether a person has a well-founded fear of persecution for a Convention reason, the issue is what the applicant will do if returned to his or her country of nationality, not what he or she should do once returned in order to eliminate that fear.
(iv)These are distinct ideas. S395’s case deals with the characteristics of the applicant which may lead to persecution and the modification of behaviour in a way which will reduce or eliminate that risk. Such steps are not required of applicants. As McHugh and Kirby JJ said in S395’s case:
It would undermine the object of the Convention if the signatory countries required [applicants] to modify their beliefs or opinions or to hide their race, nationality or membership of a particular social group before those countries would give them protection under the Convention. (at 490 [41]).
The principle articulated in Randhawa’s case is not addressed to behaviour but to the need to seek refuge in a third country because the applicant cannot live free from a fear of persecution in his or her country of nationality. The principle in Randhawa’s case does not depend in any way on the applicant modifying his or her behaviour to avoid the risk of persecution, that is to say minimising or concealing the traits which might bring about the feared persecution. Rather, it is based on the unstated assumption that nothing personal about the applicant is altered but that such traits as the applicant fears will lead to persecution in one part of his or her country of nationality will not do so in a different part of that country. In this regard, in Randhawa’s case, Black CJ said:
Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders. (at 440-441, Whitlam J agreeing at 453).
(v)Black CJ also noted that the correct question in the circumstances was whether the applicant’s fear was well-founded in relation to his country of nationality, not just the region in which he lived. Therefore, the real question in the context of these proceedings in relation to this particular issue raised by the applicant is not whether the applicant will relocate within Pakistan but whether his fear of persecution is in respect of the whole of his country of nationality or only a part of it. If the latter, then Australia does not have protection obligations to him unless it is not practical for him to relocate within Pakistan.
(vi)What the Tribunal was doing in the passage quoted at (b)(i) above when it said:
… I consider that it would be reasonable to expect the Applicant to avoid any persecution by he may fear … by relocating to one of the major cities in Pakistan
was applying the internal relocation test in the terms sanctioned by the Full Court of the Federal Court in NAIZ’s case at [15] and [22]. It was not impermissibly requiring the applicant to modify his behaviour contrary to the authority of S395’s case.
c)(i) It was the applicant’s submission that the Tribunal’s conclusion that it did not consider that it would be obvious to anyone interacting with the applicant that he was anything other than a Sunni Muslim, did not properly address the applicant’s fear that it would be easy to identify who he was, on the basis that he was not referring to casual passers-by identifying who he was or people interacting with him casually. It was the applicant’s submission that he feared persecution from “drug traffickers and religious fundamentalists” and people who had been dismissed from the Intelligence Bureau for their non-professional attitudes and affiliations with these groups. The applicant submitted that it would be easy for these people to identify who he was and that his fear was not limited to persecution based on perceptions of him being an Ahmadi.
(ii) In the context of the applicant’s claim to fear persecution by drug traffickers, religious fundamentalists and people dismissed from the Intelligence Bureau for their non-professional attitudes and affiliations with these groups, the reason why the Tribunal did not consider whether it was reasonable for the applicant to relocate to escape these people was that it did not accept this aspect of the applicant’s claims. The Tribunal discussed steps taken by the Pakistani government to “crack down on” Islamic militants in Pakistan and the decline in sectarian violence under the Musharraf government and concluded that they indicated that there was a reasonable willingness on the part of the Pakistani authorities to take action in respect of criminal acts committed by religious extremists. Consequently, there was no need for the Tribunal to consider the possibility of the applicant relocating to escape these people because it did not accept that he had a well-founded fear of being persecuted by them.
d) For the reasons expressed in (c)(ii) above, this aspect of this ground is not made out.
The Tribunal applied an incorrect test of whether the applicant could receive adequate state protection in Pakistan
The applicant submitted that his case was that the Pakistani authorities were unable to prevent persecution of him whereas the Tribunal only addressed the question of whether the Pakistani government was willing to take action to prevent such persecution.
In relation to religious extremists, what the Tribunal said was that the law enforcement agencies in Pakistan were taking steps to detect, persecute and punish the religious extremists responsible for criminal acts in Pakistan and gave examples of their ability to do so. It also considered that the evidence indicated a reasonable willingness on the part of the Pakistani authorities to do so.
In relation to drug traffickers the Tribunal concluded that it was unable to be satisfied that there was a real chance that the applicant would be persecuted by drug traffickers as a result of his work at the Intelligence Bureau and there was nothing before the Tribunal to indicate that the Government of Pakistan would encourage or condone reprisals against the applicant by drug traffickers or the former members of the Intelligence Bureau whom he claimed to fear. In this connection, the Tribunal noted that there was nothing in the evidence before it which indicated that the Government of Pakistan would not provide the applicant with a level of protection sufficient to remove a real chance of him being persecuted by such individuals.
It is apparent that the Tribunal considered not only the willingness but also the ability of the Pakistani authorities to offer State protection from the persecutory acts which the applicant claims to fear. The Tribunal concluded that the State was not powerless to act or unwilling to do so and when read without an eye seeking to find error, it is apparent that the Tribunal’s reasons at pages 17 and 18 of its decision (CB 125-126) are to the effect that effective State protection is available to the applicant in his country of nationality.
Delay
In his affidavit affirmed on 8 November 2006, the applicant sets out the chronological background to the filing of his application in the High Court and concedes that these proceedings were commenced fifteen months after the Tribunal’s decision in circumstances where the time limits for commencing proceedings in the High Court for writs of certiorari and mandamus are six months and two months respectively.
Affidavit evidence relied on by the applicant was summarised by the applicant in his written submissions in the following terms:
(a)The Applicant commenced proceedings for review in the Federal Court about three and a half weeks after receiving the Tribunal’s decision: …
(b)The Applicant, having taken action in good time, followed legal advice to discontinue that action and apply to the Minister for the exercise of discretion under s 417 of the Act: … That application failed.
(c)The legal advice was given before the High Court handed down its decision in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 47 on 4 February 2003. That decision clarified the availability of judicial review in the Migration Act notwithstanding the privative clauses, and clarified the scope of jurisdictional error. This was not appreciated in May 2002. With the benefit of hindsight, the legal advice was unduly pessimistic.
(d)After learning that his application under s 417 of the Act was unsuccessful, the Applicant sought further legal advice. Before his adviser had time to assist him, he was detained: …
(e)While in detention, the Applicant sought a bridging visa to give him the opportunity to seek review of the Tribunal’s decision. That application was refused. The Applicant successfully challenged that decision in the Migration Review Tribunal, and obtained a bridging visa: …
(f)Notwithstanding these other difficulties, the Applicant filed the present Application in the High Court on 7 May 2003, only one month after learning that the Minister had refused to act under s 417 of the Act.
(g)The Applicant was unfamiliar with the Australian legal system and has a poor command of English. He could not be expected to understand the consequences of following the advice to apply to the Minister.
(h)At the time, the Applicant was on antipsychotic and antidepressant medication and was suffering from psychological problems: …
(i)During this period, the Applicant’s had several other personal problems as outlined in Affidavit of [the applicant].
Other than his affidavit affirmed on 8 November 2006 the applicant has placed no evidence before the Court touching on the issue of why he terminated his Federal Court proceedings and, instead, sought the exercise of the Minister’s discretion pursuant to s.417 of the Act. The applicant says that counsel advised him that in light of then-recent amendments to legislation his chances of succeeding in the Federal Court were bleak. Presumably this relates to the introduction of s.474 into the Act in 2001, dealing with privative clause decisions. It can be deduced that the applicant was advised or he concluded that he stood a greater chance of obtaining a protection visa through the exercise of the Minister’s discretion than he did through pursuing his right to seek judicial review of the Tribunal’s decision. In retrospect that might appear to have been the wrong decision although, as I have concluded that there was no jurisdictional error on the part of the Tribunal, had the applicant pursued his Federal Court proceedings he would have met with no greater success there than he did with his application to the Minister.
The applicant cannot now escape the consequences of his choice to apply to the Minister rather than to continue with his proceedings in the Federal Court. Admittedly, this is not a case where the applicant sat on his hands and nor did he delay in filing these proceedings in the High Court once the Minister advised his decision on the s.417 application. However, and as conceded by the applicant, the application in the High Court was, even so, filed well outside the High Court’s time limits for commencing proceedings for writs of certiorari and mandamus. In this connection, the comments of McHugh J in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495-496 [16] are, with respect, of particular relevance:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court. [footnotes omitted].
This is not an exceptional case although undoubtedly it is most important to the applicant. In light of the circumstances and regard being had to the history of the matter, the conduct of the parties, the nature of the litigation and the consequences for the parties of an exercise of discretion in the applicant’s favour, I am not satisfied that were jurisdictional error on the part of the Tribunal to have been demonstrated the applicant would be entitled to relief. In circumstances where the applicant chose not to pursue Federal Court proceedings but, instead, pursued an alternative course by way of s.417 of the Act, I am of the view that the delay in bringing these proceedings which was thereby caused was an unduly long one and, in my view, the explanation for it is not a satisfactory one. Consequently, even had the applicant demonstrated jurisdictional error on the part of the Tribunal, I would nevertheless have withheld relief on the basis of the applicant’s unwarrantable delay in bringing these proceedings.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 2 August 2007
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