SHLB v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 254
•2 MARCH 2004
FEDERAL COURT OF AUSTRALIA
SHLB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 254Migration Act 1958 (Cth) ss 36(2), 425
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1903 (Cth) s 39BPlaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 applied
Wati v the Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 referred toSHLB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
S 410 of 2003
MANSFIELD J
2 MARCH 2004
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 410 OF 2003
BETWEEN:
SHLB
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
2 MARCH 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application by notice of motion dated 13 February 2004 to reinstate the application made on 28 March 2003 is refused.
2. The applicant pay to the respondent costs of the notice of motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 410 OF 2003
BETWEEN:
SHLB
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
2 MARCH 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
INTRODUCTION
On 13 February 2004 the applicant applied by motion for an order to reinstate his application in the Court. His application was dismissed on 3 October 2003 without a full hearing. It appears that the application was dismissed at that time because orders of the Court had not been complied with. To address the present motion it is necessary to refer in a little detail to the principal application and how it came to be decided as it did.
The applicant is a citizen of Nepal. He arrived in Australia on 25 May 2002 and shortly after that time applied for a protection visa under the Migration Act 1958 (Cth) (the Act). On 15 August 2002 a delegate of the respondent refused to grant him the protection visa for which he had applied. He sought review of the delegate's decision by the Refugee Review Tribunal (the Tribunal). On 29 January 2003 the Tribunal affirmed the decision of the delegate of the respondent.
The applicant was dissatisfied with the Tribunal's decision. He engaged solicitors. On 28 March 2003 an application was brought in this Court for orders to set aside the decision of the Tribunal and for other orders. The application was made under s 39B of the Judiciary Act 1903 (Cth). It is plain, in the light of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2, that the Court could make the order sought on the application only if jurisdictional error on the part of the Tribunal were established.
In accordance with the procedures in place, on 26 August 2003 the Court gave directions so that the applicant's case could be prepared for trial and a hearing date could be fixed. A directions hearing was fixed for 3 October 2003. The directions were not complied with. On 3 October 2003 the solicitor for the applicant appeared on the applicant’s behalf. It was acknowledged that the applicant had not complied with the directions given. It was apparently indicated that the applicant had not given any instructions to his solicitor in relation to the matter. In those circumstances, the application was dismissed with costs.
THE REINSTATEMENT MOTION
The present motion is supported by an affidavit of the applicant. He asserts that he did not receive notice of the directions given on 26 August 2003, and so did not comply with them. He complains that his former solicitor did not represent him properly, leading to his case being dismissed. He wants, he says:
‘… my case to be reinstated and rehear (sic) again so that I will be able to present my case in front of the Hon. Justice. I request the court to grant me an opportunity and assure me of my right to natural justice in this civilised part of the world.’
The file of the applicant’s former solicitor has been produced to the Court in response to a subpoena from the respondent. In view of the applicant's affidavit, I have ruled that the communications between the applicant’s former solicitor and the applicant between 31 March 2003 and 3 October 2003 are no longer the subject of client legal privilege. In fact, as the evidence shows, the instructions to the former solicitor for the applicant to institute the proceedings came from a firm of solicitors in Sydney on behalf of the applicant. The proceedings were instituted, as confirmed to those solicitors by a letter from the former solicitor for the applicant of 31 March 2003.
The next communication, either to those solicitors or to the applicant, was a letter from the former solicitor of the applicant to the applicant dated 16 September 2003. That is some three weeks after the directions of 26 August 2003 were given and less than three weeks before the directions hearing. In addition to some observations about the prospects of success, that letter included the following:
‘Attached are court orders in relation to your matter, which are self‑explanatory. If you do not comply with court orders, it is likely the matter will be dismissed in the Federal Court, on or about 3 October 2003. If you have any inquiries, please contact your registered migration agent, who also has a copy of the court orders, and they will refer your query to our office.’
A letter containing similar information was sent to the solicitors in Sydney who had instructed the former solicitor for the applicant. It appears that the letter to the applicant was not sent to his correct address. His address is 5/23A (street and suburb omitted) in New South Wales. The letter was sent to him at 4/23A (street and suburb omitted). I accept in the circumstances that it did not come to his attention.
There is no explanation as to why his Sydney solicitors did not themselves communicate with him. His affidavit does not deal with any correspondence between himself and his Sydney solicitors. He asserts in submissions that he did not have any communications with them but that is not dealt with in his affidavit.
CONSIDERATION
I am prepared to assume that, notwithstanding that the Order of 3 October 2003 has been perfected, the Court has jurisdiction, in exceptional cases, to set aside those orders under O 35 r 7, of the Federal Court Rules. See for example the discussion in Wati v the Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 552-553.
It is plain that the power to do so should only be exercised in exceptional cases where it can be shown that without fault on the applicant's part he or she has not been heard on the case and that the loss of that opportunity to be heard has or may result in injustice to the applicant.
In this matter the evidence does not go so far as to persuade me that the applicant did not, through his solicitors in Sydney, learn of the directions which had been made on 26 August 2003. However, those orders were quite extensive and they were sent only by letter on 16 September 2003. They were not sent to the applicant at his correct address. They were sent to the applicant's then solicitors in Sydney, but there would have been some time in which the receipt of that communication would have been considered and passed on to the applicant (assuming it was). The time was relatively short. One can understand in the circumstances that, even if he had been notified by his then solicitors in Sydney of those orders, he had little time to respond.
Moreover, it was clearly unsatisfactory that the applicant’s former solicitors communicated with him once only (putting aside that the communication was to the wrong address) after directions were given on 26 August 2003. There was no material to suggest any follow-up attempt to seek his instructions, either in writing or orally. The communication of 16 September 2003 was unhelpful. It did not indicate how the applicant might comply with the directions. Nor did it even invite him to contact the applicant’s former solicitor directly. It is hard not to be quite critical of the applicant’s former solicitor in the circumstances. However, as I have found that the applicant did not in fact receive the letter of 16 September 2003, it is not necessary to further consider the quality of the communication directed to him.
In my judgment the circumstances are such that the applicant has shown that he had no real opportunity to comply with the directions given on 26 August 2003 because he was not apprised of them in a timely manner, even assuming that he came to learn of them at all prior to 3 October 2003.
However, that is not the end of the matter. As I have indicated, the power to set aside a perfected judgment, if it exists at all, should only be exercised in exceptional cases. In my view, it is necessary for the applicant to show also that a significant injustice may be suffered by him if the power to reinstate his principal application is not exercised.
I do not think such an injustice is shown in the present circumstances.
The power to set aside the Tribunal's decision can only be exercised if jurisdictional error on its part is demonstrated. The applicant has not presented any arguable case that jurisdictional error, on the part of the Tribunal is demonstrated. I note that he is a litigant in person and so may have difficulty in identifying and expressing any asserted jurisdictional error on the part of the Tribunal. I have therefore given careful consideration to the Tribunal’s reasons for its decision. I have also had regard to what the applicant has put to the Court in submissions today. I have also had regard to the fact that although he has now obviously had access to the directions of the Court given on 26 August 2003 for some time, he has not expressed either orally or in any document, any cogent grounds upon which jurisdictional error might be demonstrated.
The Tribunal accepted that the applicant is a Nepalese citizen and is a high caste Brahman and Hindu. It accepted that he speaks, reads and writes Nepali, Hindu and English. It accepted his evidence that he left Nepal legally in May 2002 on a valid passport issued in 2000. It accepted that between 1987 and 2002 he had been a member of a village human rights organisation and spoke to persons in that village about human rights and about democracy. It also accepted that his late father had been an active supporter of the Congress Party and was a well-known politician in the 1950s. It also accepted that his late father had left Nepal and lived in India for some seven years to avoid the threat of persecution by reason of his political views, and had returned to Nepal only after an arrest warrant apparently issued in respect of him had been revoked.
Despite those findings, the Tribunal did not accept that the applicant satisfied the criterion for the grant of a protection visa specified in s 36(2) of the Act, namely that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). It did not do so because it did not accept that the applicant has a well-founded fear of persecution, by reason of his political opinions, despite his claims to that effect. It rejected his claims because it found them not worthy of credit.
The applicant claimed to have a well-founded fear of persecution because of political opinions which he had expressed in published material critical of the government. He is well-known as an editor of ‘Image Nepal’ and ‘Tourism News Digest’ in Nepal. He said he had published through those journals extensive material critical of the government and had attracted the adverse attention of the government and of Maoist groups from July 1999. He claimed that in July 1999 he had been declared ‘karbai’, a form of climactic threat from Marxist groups, preceding violence and possible death.
The Tribunal did not accept those claims. It gave a number of reasons for reaching that view.
Firstly, it noted that if those claims were genuine, the applicant had the opportunity to have sought asylum in Germany or in Switzerland when he visited those two countries on separate occasions during 2001, but he had not done so. If he then had a well-founded fear of persecution from July 1999, it thought he would have applied for asylum in one of those two countries, rather than returning to Nepal as he did. It inferred that he had no well-founded fear of persecution during 2001.
It also had regard to the fact that he had been able to secure during 1991 a Nepalese passport to authorise from time to time his departure from Nepal. It did not accept that he had particular difficulties in securing the passport due to his political beliefs.
Thirdly, the Tribunal found his claims to be vague and general and not expressed in terms which it considered a person with his background and education should be able to express them if they were true. It was critical of the generality with which he sought to articulate his claimed political opinions as expressed in Nepal. It was critical of his failure to produce to the Tribunal copies of any articles presented in either of the two journals, or published in other ways, reflecting his claimed political opinions, despite having had the opportunity to do so and despite him, both personally and through his migration agent, having stated the intention of presenting further evidence to the Tribunal.
It was also influenced by the applicant having remained in Nepal until May 2002, apart from his trips overseas during 2001, once he had an opportunity to travel after securing a passport in 2000, despite having as he claimed being declared karbai in July 1999. He made a claim before the Tribunal that he had been able to remain in Nepal because he had been paying monthly protection money to a Maoist group, but the Tribunal did not accept that claim because it had not previously been made and it regarded the claim only as a recent invention.
The Tribunal also noted some material contradictions in his evidence about when and the extent to which he had participated in membership of the Congress Party.
For all those reasons, the Tribunal concluded as follows:
‘Taken as a whole, in light of the implausibility of many of the key aspects of the applicant's claims, the fact that there was a material contradiction between his testimony and his claims which was not explained to the Tribunal's satisfaction, some of the testimony was evasive or exaggerated. Some of his claims were vague or not sufficiently detailed to be believable and there were a number of recent inventions; the Tribunal can only come to the conclusion that key aspects of the applicant's testimony are not credible and therefore finds that he is not a credible witness. Accordingly, since the Tribunal finds that virtually all of the applicant's claims are not credible, the Tribunal is not satisfied that he has a well-founded fear of persecution due to political opinion or for any other convention reason.’
The applicant has today submitted that the Tribunal decided the case without properly listening to his claims. He has not identified any claim which the Tribunal has not addressed. In my view, the Tribunal's reasons demonstrated that it carefully considered each of the claims of the applicant, and made decisions about them. The decisions which it made do not demonstrate jurisdictional error on its part but reflect an approach which is consistent with the proper exercise of its jurisdiction.
The applicant also submitted that he was disadvantaged because he did not have his solicitor or migration agent at the hearing before the Tribunal. The Tribunal conducted a hearing on 24 January 2003. Clearly, that hearing took place in accordance with the Tribunal's obligation to accord procedural fairness to him, at least as expressed in s 425 of the Act. He was assisted in giving his evidence with a Nepalese interpreter. There is nothing to indicate that the applicant was precluded from having his migration agent or his solicitor present during the Tribunal hearing. The reason why one or other of those persons was not present is not explained, but the absence of one or other of them of itself does not demonstrate a lack of procedural fairness on the part of the Tribunal in the conduct of its hearing.
I have also had regard to the grounds upon which the application is expressed. They are general in terms and appear to be in part derivative of grounds available for judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Certain of them relate to complaints of a failure to accord procedural fairness to the applicant. They are not particularised. Apart from what the applicant has said, there is nothing to indicate any complaint on that score. I have rejected the applicant's particular complaint on that score. It does not present any arguable case of a lack of procedural fairness on the part of the Tribunal.
The balance of the grounds identified seems to fall under the general description of errors of law. There is nothing in the Tribunal's reasons which indicates that it had misunderstood its task or misapplied the law in undertaking its task. It has correctly identified the relevant provisions of the Act and of the Convention. It has referred, in accurate terms, to the decisions of the High Court concerning those provisions. It has applied those provisions, apparently accurately. In my judgment there is no arguable basis upon which the Tribunal might be said to have erred in law in its consideration of the applicant's claims.
Accordingly, I have come to the view that there is simply no arguable basis upon which it could be said that the Tribunal committed jurisdictional error in the conduct of its review. By reason of that conclusion, I do not think there is any basis for reaching the view that, by virtue of the way in which the applicant's claim came to be dismissed, any injustice was caused to him. I think his claim, whether he had complied with the directions or not, was bound to fail. There is nothing before me which indicates that there was any prospect at all of demonstrating jurisdictional error on the part of the Tribunal.
In those circumstances, in my discretion, I decline to exercise the power (which I have assumed is available to me) to set aside the orders made on 3 October 2003 and to reinstate the application in the court. The application by notice of motion of the applicant of 13 February 2004 is refused. I order that the applicant pay to the respondent costs of the notice of motion.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 16 March 2004
Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 2 March 2004 Date of Judgment: 2 March 2004