SZCTH v Minister for Immigration (No 2)
[2004] FMCA 284
•12 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCTH v MINISTER FOR IMMIGRATION (No.2) | [2004] FMCA 284 |
| MIGRATION – Review of a decision of a delegate of the Minister refusing a protection visa – whether the delegate overlooked a relevant consideration or breached s.56 of the Migration Act 1958 (Cth) – whether the delegate made findings contrary to the evidence – no reviewable error found – application dismissed. PRACTICE AND PROCEUDRE – Observations on the exercise of discretion to refuse relief. LAW REFORM – Observations on the desirability of the RRT having the power to extend the time limit on review applications. |
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 10
High Court Rules
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.48B, 54, 56, 417, 424, 476, 477, 500
Abebe v Commonwealth (1999) 197 CLR 510
Abedi v Minister for Immigration [2001] FCA 1430
Abedi v Minister for Immigration [2002] FCAFC 43
Adler v District Court of New South Wales (1990) 10 NSWLR 318
Anderson v Commissioner for Employees' Compensation (1986) 11 FCR 210
Appellant S106/2002 v Minister for Immigration (2003) 198 AR 59
Applicant M29 of 2001 v Minister for Immigration[2003] FCA 1266
Applicant M216/2002 v Minister for Immigration [2003] FCA 931
Applicant VUAD of 2003 v Minister for Immigration [2003] FCA 1331
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Commissioner of Police v Gordon [1981] 1 NSWLR 675
Daniel v Minister for Immigration (2004) 205 ALR 198
Dranichnikov v Minister for Immigration (2003) 197 ALR 389
Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829
Gardner v General Manager of the Territory Insurance Office (1991) 104 FLR 287
Htun v Minister for Immigration (2001) 194 ALR 244
M206/2002 v Minister for Immigration [2004] FCA 24
Macksville & District Hospital v Mayze (1987) 10 NSWLR 708
Minister for Immigration; Ex parte Miah (2001) 179 ALR 238
Minister for Immigration v Rajamanikkam (2002) 210 CLR 222
NABD v Minister for Immigration [2002] FCA 384
NACB v Minister for Immigration [2003] FCAFC 235
NAMQ v Minister for Immigration [2003] FMCA 553
NAUV v Minister for Immigration [2003] FCA 1319
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (NSW) (2001) 53 NSWLR 559
Plaintiff S157 of 2003v Commonwealth (2003) 195 ALR 24
R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720
R v Judges of Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Ruddock, Ex parte Applicant S154/2002 (2003) 201 ALR 437
Re Ruddock; Ex parte LX [2003] FCA 561
Saitti Pty Ltd v Commonwealth [2001] FCA 817
SCAT v Minister for Immigration [2003] FCAFC 80
Sellamuthu v Minister for Immigration (1999) 90 FCR 287; (2001) 194 ALR 244
SFGB v Minister for Immigration [2003] FCAFC 231
SmithKline Beehcam (Australia) Pty Ltd v Chipman [2002] FCA 674
Stevenson v Hardy (1994) 63 SASR 86
Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 17 ALD 551
Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 90 ALR 280
SZAOV v Minister For Immigration [2004] FMCA 223
SZCTH v Minister for Immigration (No 1) [2004] FMCA 211
VAAW v Minister for Immigration [2003] FCAFC 202
VQAN v Minister for Immigration [2003] FCA 1541
Weinal v Judge Parsons (1994) 62 SASR 501
Wyeth Australia Pty Ltd v Minister for Health and Aged Care [2000] FCA 330
Yarmirr v Australian Telecommunications Corp (1990) 96 ALR 739
| Applicant: | SZCTH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ428 of 2004 |
| Delivered on: | 12 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 May 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Ms L Tucker, pro bono publico |
| Counsel for the Respondent: | Ms M Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ428 of 2004
| SZCTH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of a delegate of the Minister made on 13 May 1997. The delegate decided not to grant the applicant a protection visa. I previously ruled that I had jurisdiction to decide whether the decision of the delegate is a privative clause decision: SZCTH v Minister for Immigration (No 1) [2004] FMCA 211.
The applicant asserts Bangladesh nationality and made claims of religious persecution. The relevant background information is set out in paragraphs 3.1 through to 3.5 of written submissions prepared on behalf of the Minister by Ms Allars. I adopt those paragraphs for the purpose of this judgment:
The applicant, who is a citizen of Bangladesh of Hindu religion, sought a protection visa on the ground that he had a well founded fear of persecution on ground of religion by the Muslim community in Bangladesh.
In his application for a protection visa the applicant claimed that: [1]
[1] Affidavit of Jennifer Bautista, Exhibit JUB1 p 28.2 – 28.5.
i)the Muslim community confiscated and occupied his land and dwellings and confiscated his property in Gopalgong;
ii)the Muslim community intimidated him and threatened to kill him;
iii)he and his mother fled Bangladesh and travelled overland into India without valid travel documents, so that they became stateless; and
iv)he obtained a false Indian passport to travel to Australia.
The delegate found, giving the applicant the benefit of the doubt, that he was a citizen of Bangladesh. However the delegate did not accept as plausible the applicant’s claim that he would be killed if he returned because:
i)he had lived in India for three months without difficulty before he arrived in Australia;
ii)his mother was still living there without any claimed problems; and
iii)no reason had been given as to why he would leave India where he was safe and travel on a false passport, risking being returned to Bangladesh.
The delegate also made findings, based on country information, that:
i)he would not have lost his Bangladeshi citizenship unless he renounced it;
ii)minority religions in Bangladesh are not persecuted;
iii)there is no evidence Hindus may not obtain passports in Bangladesh; and
iv)the courts are independent in Bangladesh.
Relevantly to the applicant’s claims the delegate concluded that:
i)he did not claim his property was confiscated by reason of his Hindu religion; and
ii)his property dispute with Muslims was localised and he could relocate within Bangladesh.
Further background information comes from the written submissions prepared on behalf of the applicant by Ms Tucker. I adopt paragraphs 3 through to paragraph 7 of those submissions for the purposes of this judgment:
The applicant arrived in Australia on 3 March 1997 and his application for a protection visa was received on 15 April 1997. This was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') on 13 May 1997. The Applicant applied for a review of the decision on 18 June 1997 but, as this was one day out of time, the Refugee Review Tribunal ('the RRT’) found it had no jurisdiction to consider the application.
On 14 October 1997, the applicant lodged a Federal Court application of the RRT’s decision. The applicant then withdrew the application on 17 December 1997. On 12 January 1998 the applicant wrote to the Minister to request that he "approve" the application for a protection visa. but this was refused on 3 March 1998. The Minister stated that, as there was "no capacity to waive the statutory time limits" applicable to the RRT application, the applicant's case "cannot be considered under s.417 of the Migration Act" (court book, page 89).
The applicant was then a member of a class action lodged in the High Court in June 2000 but the action was discontinued in March 2001.
On 10 May 2001 a representative acting for the applicant wrote to the Minister asking that he exercise his discretion under s.48B of the Act. This was refused on 4 June 2001. On 1 August 2003 the applicant made another request to the Minister requesting that he exercise his Ministerial discretion under s.48B of the Act and his public interest power under s.417 of the Act. On 18 September 2003 the respondent informed the applicant that the request under s.48B would not be referred to the Minister. On 20 October 2003 the Respondent informed the Applicant that the request under s.417 of the Act was refused.
On 19 February 2004 the applicant lodged an application for judicial review in the Federal Magistrates Court. On 5 April 2004 this Court held that a motion by the respondent seeking orders for the application to be dismissed was allowed only insofar as it concerned the review of the RRT decision.
Ms Tucker appeared for the applicant pro bono publico on 5 May 2004. It is appropriate that I place on record the Court’s appreciation to Ms Tucker for her willingness to appear on that basis and prepare written submissions in support of the application. I also wish to note that Ms Tucker represented the applicant most ably and I was assisted by her submissions.
There have been several amendments to the application for review originally filed on 19 February 2004. The matter proceeded before me on the basis of an amended application filed in court by leave on 5 May 2004. The following grounds of review are advanced in that application:
i)The decision of the delegate of the Minister (“the delegate”) demonstrated constructive failure to exercise jurisdiction as the delegate failed to have regard to the applicant’s claim.
ii)The decision of the delegate failed to comply with the requirements of the Act pursuant to s.54(1) and s.56(1).
Particulars
The delegate did not consider the applicant’s claim that he feared he would be killed by Muslims to prevent him reclaiming land confiscated from him with the help of the authorities.
The delegate’s findings concerning the independence of the judiciary and the prospect of relocation demonstrated a failure to understand the nature of the applicant’s claim and the available country information concerning the official nature of land confiscation.
iii)The delegate’s findings were contrary to the evidence before the delegate such as to constitute jurisdictional error.
Particulars
The delegate made findings that [the] applicant could pursue his land confiscation matter through the court, that relocation would be available for him to avoid problems in relation to the land dispute and that leaving Bangladesh illegally and being without a Bangladesh passport would not threaten his Bangladesh citizenship.
The evidence before the delegate as provided by the applicant and in the 1996 US State Department report was contrary to those findings.
iv)The delegate failed to take into account a relevant consideration, namely country information clearly relevant to the applicant’s claim.
Particulars
The applicant claimed that his land had been confiscated with the cooperation of law enforcement authorities. The delegate stated that he had regard to the 1996 US State Department Report for Bangladesh in finding that the applicant could pursue this matter through the courts.
The 1996 US State Department report referred to the Vested Property Act under which Hindu-owned land was confiscated, that there had been no attempt to redress the confiscations and that violence had surrounded such confiscations.
I also received into evidence an affidavit affirmed by the applicant on 3 May 2004 and filed the following day. There is an error in the affidavit in that it states in the first line that it was affirmed on 5 May 2004. The affidavit is directed principally at explaining the delay in bringing the present proceedings in this Court.
Reasoning
Grounds 1 and 2 – whether there was a constructive failure to exercise jurisdiction and whether the Migration Act was breached
Ms Tucker makes the following submissions on these grounds:
The land confiscation
The applicant’s claim was that his land was confiscated ‘with the direct cooperation of the law enforcing authorities’ (court book, page 17). The delegate, however, did not respond to this aspect of the applicant’s claim. The delegate simply noted the claim and then went on to cite country information from the 1996 US State Department report for Bangladesh concerning the independence of the judiciary.
The same report also states, however, that such confiscation occurs pursuant to the application of legislation, with no indication that redress has been possible for the Hindu population. Section 5 of the report[2] provides, in relation to religious minorities:
[2] Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status.
Property ownership, particularly among Hindus, has been a contentious issue since independence in 1971, when many Hindus lost landholdings because of anti-Hindu discrimination in the application of the law. Prior to its June election victory, the Awami League promised to repeal the Vested Property Act, the law used to deprive Hindus of their property. However, The Government has so far taken no action. There have been cases of violence directed against religious minority communities that have also resulted in the loss of property. Such intercommunal violence has caused some members of religious minority groups to depart the country.
Citizenship
The applicant claimed that, as he had left Bangladesh illegally and did not have a Bangladesh passport, that he was now stateless (court book, pages 20-21). The delegate stated that (court book, page 29):
"… there is no reason to believe that he is still not a Bangladesh citizen as he would not have lost his Bangladesh citizenship unless he had renounced it."
The delegate then cited country information which indicates that the applicant cannot renounce his Bangladeshi citizenship (court book, page 29). It is submitted that this is not the same as the Bangladesh authorities acting to do so. Section 2 of the 1996 US State Department Report[3] refers to an incident in which the authorities did so act:
[3] Respect for Civil Liberties, Including: d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation.
In August about 200 people, reported to be Bangladeshis working illegally in Pakistan, were forced back to Pakistan when they attempted to enter Bangladesh. The Government said that they carried false passports, denied their claim to citizenship, and excluded them from the country without judicial process. This occurred despite efforts by their local family members to persuade the Government that the returnees were citizens.
The delegate’s finding in relation to the applicant’s citizenship thus did not respond to the US State Department Report to which the delegate stated he had regard.
The applicant submits that the delegate’s decision concerning the confiscation of land and the issue of citizenship demonstrate that the Minister did not have regard to the 1996 US State Department Report.
Section 56(1) of the Act provides:
In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
The applicant concedes that it was for the delegate to determine the country information to which he had regard but submits that, once it was before the delegate, that he was then required to have regard to it.
The threats to the applicant
The claim, as set out by the applicant, was that the Muslim community “continually intimidated us and threatened to kill us in order to make us leave Bangladesh” and “If I had to return to Bangladesh, the Muslim community would kill me so that I could not reclaim my property”. The applicant made references to the threats to his life in his answers to questions 36, 37, 38, 39 and 40 of the visa application form (court book, pages 17-20). The applicant also claimed that the confiscation occurred with the "direct cooperation" of the authorities.
The delegate’s findings in relation to the property confiscation, that there was no apparent reason why the applicant could not relocate and that the applicant could pursue the matter through the Bangladesh courts, were not a response to the applicant’s stated fears that he would be killed if returned to prevent him from trying to reclaim his land.
If a claim is that a persecutor is feared because the persecutor believes that a claimant may attempt a certain action – in this case the return of confiscated land – the risk inheres in the threat that the persecutor will seek to prevent the claimant undertaking that action.
The delegate’s decision thus indicates a failure to have regard to the claim on two fronts:
i)He states that the applicant can pursue the matter, yet this is what the applicant has said will attract the risk of persecution by the Muslim community;
ii)He states that the applicant can relocate, yet this does not address the claimed fear if it is perceived by the feared persecutor that the applicant may pursue the claim as such risk is not necessarily confined to the applicant’s home city.
The delegate also states that the applicant "does not claim that he was of any adverse interest to the authorities in Bangladesh" (court book, page 30). In his answer to question 40 on the visa application (court book, page 20), the applicant states:
"The authorities cooperated with the Muslim community in throwing us off our property."
It is submitted that this statement of the applicant indicated that the Applicant and his mother did claim that they were of adverse interest to the authorities.
Section 54(1) of the Act provides, relevantly:
The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
As Gaudron J states in Minister for Immigration; Ex parte Miah (2001) 179 ALR 238 at [105], with respect to the requirement in s.54 of the Act: “… the words ‘have regard to’, in their ordinary meaning, require something more than the mere noting of the information in question.”
The applicant submits that the response of the delegate to the land confiscation, the threats, the applicant's citizenship and the issue of adverse interest indicates an apparent failure to consider the application before him and demonstrates constructive failure to exercise jurisdiction. Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [86]-[87].
Ms Tucker’s approach therefore is to run together the first and second grounds of review.
Ms Allars makes the following submissions. In relation to the first ground Ms Allars submits as follows:
Ground 1: Whether constructive failure to exercise jurisdiction
Ground 1 claims the decision demonstrates constructive failure to exercise jurisdiction as the delegate failed to have regard to the applicant’s claim. The applicant’s written submissions identify the parts of the claim to which this ground refers. These are:
i)the claim that the applicant’s land was confiscated with the direct cooperation of the law enforcing authorities; and
ii)the claim that the applicant was now stateless.
(i) Confiscation of property
The delegate concluded that this was not a claim to persecution on a Convention ground, namely Hindu religion and in any event if this did happen, on the basis of the United States report the applicant would be able to pursue this in Bangladesh courts because of the independence of the judiciary. The delegate is alleged not to have addressed the claim because the same report stated that confiscation occurs pursuant to the Vested Property Act.
The delegate had a duty to consider the claim as it was made by the applicant.[4] As held in Htun v Minister for Immigration[5] and SCAT v Minister for Immigration,[6] the delegate had a duty to deal with all aspects of the claim. That is a very different matter from the delegate’s failing to deal in his reasons with every factual issue.[7] The latter does not constitute and error of law.
Generally, Ground 1 seeks to re-agitate factual issues which were for the delegate, relying upon a “failure to understand the nature of the Applicant’s claim” and the country information. However it is evident from the delegate’s reasons that he dealt with all aspects of the claim.
The respondent also makes three particular responses to Ground 1.
Firstly, the delegate was “unable to accept as plausible” the applicant’s claim that he would be killed if he returned to Bangladesh, for the reasons set out in paragraph 3.3 above. The delegate did not make a finding in the applicant’s favour that he accepted the applicant’s claim that his land was confiscated. The delegate says in his reasons “if this did in fact happen to him….”.[8] The delegate concludes his consideration of this claim by noting that the applicant had stated he would be providing further information and relevant (unspecified) documents but these had not been received even though it was now six weeks after the application was lodged.[9]
Secondly, the delegate found that even if it were true that the land was confiscated, this was not a claim to persecution on a Convention ground. The delegate found that the applicant did not claim that the land was confiscated because he was a Hindu. That finding was open to the delegate. The applicant’s claim in his application for a protection visa was simply that the Muslim community with the cooperation of law enforcement authorities confiscated his land, dwellings and other property.[10] No claim was made that his Hindu religion was the cause of this action.
Thirdly, the delegate found that even giving the applicant the benefit of the doubt and treating his claim as being that the confiscation was done by reason of his Hindu religion, he would have adequate redress through the court system in Bangladesh since the judges in Bangladesh were independent. This finding as to the political situation in Bangladesh was based upon a passage quoted[11] from the United States report. ... Nonetheless the applicant relies[12] upon another passage in the report in support of an argument that the delegate’s finding of fact was incorrect. That other passage describes the effect of the Vested Property Act by which Hindus have been deprived of their property. The passage contains no evidence that judges are not independent. The passage is ambiguous as to whether the Vested Property Act discriminates against Hindus by reason of the content of the law or by reason of the way in which it is administered by the government. Whichever way the passage is to be understood, it has nothing to say about the way in which the judiciary interprets or applies the Vested Property Act.
Accordingly, the applicant has not pointed to evidence which was before the delegate which indicates that the judiciary in Bangladesh is not independent. Even if there were such evidence it was for the delegate to weigh it against the passage in the United States report which describes the judiciary in Bangladesh as independent. That passage indicates that there was some evidence before the delegate from which it was open to the delegate to draw the inference that the applicant could have recourse to the courts to pursue his property dispute and that the judiciary would deal with his claim independently irrespective of his Hindu religion.
(ii) Claim that applicant stateless
The delegate plainly considered the claim made by the applicant that he was stateless. The applicant’s complaint is that the issue was decided against him on the facts as to the law and practice in Bangladesh. The delegate based his finding that the applicant would not lose his Bangladeshi citizenship on cable information from the Department of Foreign Affairs and Trade, which indicated that it is not possible for Bangladeshi citizens to renounce their citizenship unless they become citizens of another country.[13] The applicant relies[14] upon a passage from the United States report... The passage concerns a particular incident rather than the current law and practice with regard to citizenship in Bangladesh. The passage is consistent with the people involved in that incident not having been Bangladeshi citizens, given that the Bangladeshi government having formed the view that they carried false Bangladeshi passports.
The passage does not therefore provide support for the claim that the delegate failed to have regard to the United States report, or for the finding of fact which the applicant says ought to have been made. The complaint is about the delegate’s findings of fact. There was evidence on which it was open to the delegate to make the finding that the applicant was not stateless.
[4] Abebe v Commonwealth (1999) 197 CLR 510, 576 at [187]; ReRuddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437, 450 at [57] per Gummow and Heydon JJ (with whom Gleeson CJ agreed).
[5] Sellamuthu v Minister for Immigration (1999) 90 FCR 287, 292, 294; (2001) 194 ALR 244, 259 per Allsop J.
[6] [2003] FCAFC 80 at [29] per Madgwick and Conti JJ.
[7] Htun v Minister for Immigration (2001) 194 ALR 244, 259 per Allsop J.
[8] Affidavit of Jennifer Bautista, Exhibit JUB1 p 30.5.
[9] Affidavit of Jennifer Bautista, Exhibit JUB1 p 30.7.
[10] Affidavit of Jennifer Bautista, Exhibit JUB1 p 17.6.
[11] Affidavit of Jennifer Bautista, Exhibit JUB1 p 30.6.
[12] Applicant’s Amended Outline of Submissions, para 13.
[13] Affidavit of Jennifer Bautista, Exhibit JUB1 p 29.4.
[14] Applicant’s Amended Outline of Submissions, para 15.
In relation to ground 2 Ms Allars submits as follows:
Ground 2: Whether failure to comply with ss 54(1) and 56(1) of the Act
Ground 2 claims that the delegate failed to consider the applicant’s claim that he feared he would be killed by Muslims to prevent him reclaiming land confiscated from him with the help of the authorities, and that this involved a failure to comply with ss.54(1) and 56(1) of the Act.
The delegate did take into account the applicant’s claim that he was threatened, and that the confiscation occurred with the direct cooperation of law enforcement authorities.[15] The delegate’s response was that he did not find these claims plausible. The reasons of the delegate indicate that it is not correct to say that the delegate failed to consider these aspects of the applicant’s claim, which were in any event factual components rather than integers of the claim.
The relocation of the applicant from his home town of Gopalgong was not a central issue, given the delegate’s conclusion that he did not find the applicant’s claim of threats to kill him to be plausible. However the delegate’s conclusion that relocation would be possible and reasonable was based on country information that citizens enjoy freedom of movement in Bangladesh.[16]
As to s.54(1) of the Act, the applicant has not identified any information in the application for the protection visa which was not properly taken into account by the delegate.
Section 56(1) of the Act does not impose upon the delegate any duty to obtain additional information but rather confers a discretionary power. It was for the applicant to make out his case by placing before the delegate information in support of his claims.[17] The applicant indicated in his application that he would be providing further information and relevant but unspecified documents. Although he had the opportunity to do so during the six week period prior to the delegate’s making the decision, the applicant failed to take up the opportunity. He did to send the delegate any supporting documentation. Nor did the applicant subsequently ever provide documentation in support of his claims. The information which was before the delegate was plainly taken into account. The applicant’s complaint is with the interpretation and weight which the delegate gave to that information.
[15] Affidavit of Jennifer Bautista, Exhibit JUB1 p 28.2 – 28.4.
[16] Affidavit of Jennifer Bautista, Exhibit JUB1 p 30.4.
[17] Abebe v Commonwealth (1999) 197 CLR 510, 576; Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ.
I accept in general Ms Allars’ submissions. The applicant’s claims are contained solely within his application for a protection visa. Those claims are quite brief and not completely clear. However, read as a whole the protection visa application appears to be based upon a claim of religious persecution on the basis that the applicant fears physical harm and has been the victim of confiscation of land and other assets (being moveable assets). The applicant was given the opportunity to provide further information but did not take that opportunity within the time given by the delegate (six weeks). The delegate found that he was “unable to accept as plausible the applicant’s claim that he will be killed, if he returns to Bangladesh, or that he will be persecuted in any other way”. It is not clear from the decision record whether this is really a credibility finding (as submitted orally by Ms Allars) or whether (as submitted orally by Ms Tucker) this is simply a finding that the presiding member was not persuaded by the claims made by the applicant. The discussion which follows in the decision record supporting that finding does not appear to me to be directed at issues of credibility, but whether the applicant’s fears are well-founded. On balance, I do not regard the delegate’s finding as a finding that the applicant’s fears are not genuine. It is a finding that the applicant’s fears are not well-founded. However, I do not think it matters one way or the other. The delegate considered the two elements of the applicant’s claims. He considered whether the applicant would be physically harmed should he return to Bangladesh and he considered whether the applicant faced persecution by reason of a property dispute. Those were the only elements or integers of the applicant’s claim and they were both considered, albeit, not as thoroughly as they could have been. It was open to the delegate to reject the claim on the basis that the applicant was not a national of Bangladesh at all but a national of India. He came to Australia from India on an Indian passport. Nevertheless, the delegate gave the applicant the benefit of the doubt and accepted his claim of Bangladeshi nationality. Having given the applicant the benefit of that doubt it appears to me that the delegate then proceeded to consider the applicant’s claims as if they were genuine claims.
The applicant had asserted that he was stateless which, on its face, conflicted with his claim of Bangladeshi nationality. It may have been an assertion that he did not have effective Bangladeshi nationality. Whether or not that was what the applicant was asserting the delegate rejected the assertion that the applicant was stateless. The delegate found that the applicant was a national of Bangladesh and found that the applicant would be able to return to Bangladesh without coming to harm. The delegate specifically rejected the assertion that the applicant was rendered stateless by having left Bangladesh without a Bangladeshi passport.
Sections 54(1) and 56(1) of the Migration Act 1958 (Cth) (“the Migration Act”) provide as follows:
The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
Section 56(1):
In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
There is no substance to the assertion that the delegate breached s.54(1) of the Act because all of the information in the visa application was considered.
Section 56(1) of the Migration Act is in essentially the same terms as s.424(1) of the Migration Act. That latter section has been considered by the Federal Court on a number of occasions. In Abedi v Minister for Immigration [2001] FCA 1430 at paragraphs 18-22 His Honour Merkel J found that s.424(1) is a provision dealing with information that the RRT obtains on its own initiative rather than information provided by an applicant. The same interpretation applies to s.56(1). I note that the decision in Abedi was approved on appeal on different grounds: Abedi v Minister for Immigration [2002] FCAFC 43.
The issue here is whether the delegate had regard to all relevant parts of the US Department of State country report on Bangladesh relating to human rights practices as assessed in 1996: exhibit A1. It is clear from the decision record that the delegate chose (in reliance upon s.56(1)) to obtain that report for the purposes of his decision. The delegate clearly considered the report because it is referred to several times in the decision record. However, Ms Tucker submits that the delegate erred by having regard only to the issue of judicial independence dealt with in that report, rather than the issue of the application of the Vested Property Act of Bangladesh. The Act had not been referred to by the applicant but had been referred to in the report as a law used to deprive Hindus of their property. It is not clear whether the Vested Property Act was regarded in the report as a discriminatory law in itself or whether the concern was that the law was being applied in a discriminatory way. If the former, then the independence of the judiciary would not be a complete answer because even an independent judiciary must apply valid laws. If the latter, the independence of the judiciary is a compelling factor, because an independent judiciary can deal with wrongs arising from the discriminatory application of a non discriminatory law.
It does not necessarily follow that because the decision record does not refer to that part of the report dealing with the Vested Property Act that that part of the report was not considered. It may have been regarded as irrelevant on the basis that the issue was one of the discriminatory application of a non discriminatory law and that the independence of the judiciary was a complete answer. A decision maker does not breach s.424(1) by deciding that certain information should be disregarded as irrelevant: NAMQ v Minister for Immigration [2003] FMCA 553 at [7]. In any event, the delegate clearly had regard to the report in general in reaching his decision. It was not incumbent upon the delegate to refer to other parts of the report before him that might have led to a different conclusion to the one he reached: see NABD v Minister for Immigration [2002] FCA 384 at [33]. I do not consider that there was any failure on the part of the delegate to comply with s.56(1).
Findings contrary to the evidence
On this ground, Ms Tucker makes the following submissions:
The findings made by delegate, critical to his decision to refuse the visa as set out above, were not open to him on the evidence before him. Such findings may constitute jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; SFGB v Minister for Immigration [2003] FCAFC 231 at [19].
Further, the delegate’s finding in relation to the state protection available in relation to property confiscation, demonstrated that the delegate failed to take into account a relevant consideration, namely the existence of the Vested Property Act and its application to deprive Hindus of their land.
I reject those submissions. I agree with and adopt the following submissions made by Ms Allars:
Ground 3 claims that there was evidence provided by the applicant and in the United States report which was contrary to the delegate’s findings that the applicant could pursue his land confiscation matter through the courts, could relocate and that leaving Bangladesh would not threaten his Bangladesh citizenship.
Australian Broadcasting Tribunal v Bond[18] is authority that error of law occurs where a finding of fact is made which is not supported by any evidence at all. The Full Federal Court has held that Appellant S106/2002 v Minister for Immigration[19] has not altered the principles set out in Bond and Minister for Immigration v Rajamanikkam.[20] The applicant relies upon SFGB v Minister for Immigration.[21] In that case the Full Court re-affirmed the principle set out in Bond and found that there was no evidence before the RRT that there was not an isolated pocket of Taliban resistance in the area where the applicant lived.[22] That is not the present case. There is no suggestion in the applicant’s application or in the country evidence of any unevenness in the government’s approach to Hindu minorities in Bangladesh by reference to location.
In relation to the issue of pursuit of the land confiscation claim through the courts, …
… the issue of relocation… and
… the issue of citizenship the respondent repeats the submissions made … above.
There is no basis for the applicant’s submission[23] that the delegate’s findings were not open to him on the evidence before him.
[18] (1970) 170 CLR 321.
[19] (2003) 198 AR 59 at [57]
[20] VAAW v Minister for Immigration [2003] FCAFC 202 at [30] –[37]. See also NACB vMinister for Immigration [2003] FCAFC 235 at [29].
[21] [2003] FCAFC 231.
[22] [2003] FCAFC 231 at [24]-[28].
[23] Applicant’s Amended Outline of Submissions, para 29.
The final ground of review is repetitive of the first two grounds. I have already found that the delegate considered all elements or integers of the applicant’s claim and did not breach s.56(1) of the Migration Act in relation to the US State Department report.
The applicant has failed to persuade me that the decision of the delegate is vitiated by jurisdictional error. It follows that the decision is a privative clause decision and accordingly I must dismiss the application.
Discretion
It is not strictly necessary to consider the exercise of the Court’s discretion to withhold relief. However, if I am wrong in my conclusion that there is no jurisdictional error in the decision of the delegate, I would nevertheless withhold relief in the exercise of my discretion. On this issue, Ms Tucker makes the following submissions:
It is submitted that the applicant’s delay in bringing this application should not prevent relief being issued. The applicant has made a number of attempts to have the Minister consider this case before making this application but has been refused. It is submitted that the situation of the applicant, as a person without financial means and only sporadic legal support and with limited English, should be taken into account in determining whether such delay was warranted.
Further, as Kirby J notes in Miah at [217], where there is a discretion to grant or refuse relief, such discretion should be exercised: “with a clear appreciation that the constitutional remedy exists not simply to uphold the private rights of the party invoking it but also to ensure obedience to the law by officers of the Commonwealth, which is a matter of wider concern.” See also the comments of Gaudron J in Miah at [106]-[107].
The submissions made by Ms Allars on this question are lengthy. She relevantly submits as follows:
In the event that any ground of review were established, there are four bases on which the Court should exercise its discretion to decline to grant relief. These are:
i)delay by the applicant;
ii)course of action taken by applicant;
iii)alternative avenue of review; and
iv)futility.
(i) Delay
Section 477(1A) of the Act requires that an application for review of a privative clause decision be made to the Court within 28 days of notification of the decision.[24] The intention of Division 2 of Part 8 of the Act is that a decision made by a delegate is not to be reviewable by the Court. That is plain from the terms of s.476(1) of the Act. However, because a decision made by a delegate is defined in s.476(6) as a “primary decision” which is in turn defined by reference to “privative clause decision”, in circumstances where the delegate’s decision is affected by jurisdictional error it is not a privative clause decision, the time limit does not apply.
[24] Act s 477(1A).
For the reasons set out above, the respondent contends that there is no jurisdictional error and the decision of the delegate is a privative clause decision.
Even if jurisdictional error were established, it does not follow that an application may be made under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”)in respect of a delegate’s decision at any time. The common law principles relating to delay apply. Those principles are not dissimilar to those applying to extensions of time for lodging applications made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) or in the High Court’s original jurisdiction. The principle has been considered in recent migration case-law in relation to the High Court’s jurisdiction and the Federal Court’s jurisdiction under s.39B on remitter from the High Court. This is not a case like Applicant M216/2002 v Minister for Immigration[25] or Daniel v Minister for Immigration[26] where an application has been remitted by the High Court. In those cases the High Court Rules (“the High Court Rules”) applied and the Federal Court had power to enlarge the time for making an application for the writs. However, since the s.39B jurisdiction is parallel to that of the High Court this case-law provides appropriate guidance as to the proper approach to the exercise of the discretion to decline to intervene on the ground of delay.
In Re Commonwealth of Australia; Ex parte Marks[27] McHugh J refused an application for an extension of time to make an application for certiorari and mandamus in the original jurisdiction of the High Court. Pursuant to High Court Rules O 60 r 6, a justice of the Court has power to enlarge the time appointed by the High Court Rules[28] for filing an application. McHugh J held that when more than one year has elapsed between the decision challenged and the commencement of the proceedings the time limitations in the Rules of the High Court should be “rigidly applied” “in all but very exceptional cases”.[29] McHugh J said that the explanation given for the delay is relevant to the exercise of the discretion.[30] The applicable principle is:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional writs 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 decision. [31]
McHugh J in Marks could not see how an extension of time could be granted to a person who with knowledge of a decision delayed 17 months before seeking relief, unless some conduct of the public body had brought about the delay.[32] Indeed for McHugh J no applicant who delayed for more than a year would obtain an extension of time.[33]
In the present case the delay is six years and nine months. The delegate made the decision on 13 May 1997. The application in the Federal Magistrates Court was filed on 19 February 2004. An application to the RRT was filed out of time. Even if the period of delay were calculated from the date of the RRT’s decision that it had no jurisdiction, on 9 September 1997, it is over six years.
An application in the Federal Court was filed on 14 October 1997 but discontinued by the applicant on 17 December 1997. A class action commenced in the High Court on 9 June 2000 was also discontinued, on 20 March 2001. In Marks McHugh J held that an applicant’s inability to obtain favourable legal advice is not a ground for extending time for seeking certiorari or mandamus:
Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public act decision and judgment cannot be the hostage of an applicant’s search for favourable legal advice. [34]
[25] [2003] FCA 931 at [19] – [25].
[26] (2004) 205 ALR 198, 200 at [4].
[27] (2000) 177 ALR 491.
[28] HCR O 55 rr 17(1) (six months in the case of certiorari), 30 (two months in the case of mandamus).
[29] (2000) 177 ALR 491, 498.
[30] (2000) 177 ALR 491, 495.
[31] (2000) 177 ALR 491, 495.
[32] (2000) 177 ALR 491, 495-6.
[33] (2000) 177 ALR 491, 496. See also M206 of 2002 v Minister for Immigration [2004] FCA 24 at [16] – [18] per Goldberg holding there was no acceptable explanation for a delay of three years, irrespective of the applicant’s belief for a time that he would be part of a class action in the High Court.
[34] (2000) 177 ALR 491, 496 at [17].
Four weeks after the discontinuance of the Federal Court proceeding and before the commencement of the High Court proceeding, the applicant made a request to the Minister to exercise the personal discretion under s.417 of the Act to substitute a more favourable decision for that of the RRT. That request was refused within six weeks. A period of two years and three months elapsed before the class action in the High Court was commenced. Six weeks after the class action in the High Court was discontinued, the applicant made a request to the Minister to exercise the personal discretion under s.48B of the Act so as to permit him to make a fresh application for a protection visa. That request was refused within a month. A period of two years and two months elapsed. The applicant then made a second request on 1 August under s.48B. That request was refused with four weeks. One year and ten months later, on 18 September 2003, the applicant made further applications under ss.48B and 417. Those requests was refused within seven weeks and eleven weeks respectively. The applicant has been an unlawful non-citizen since 17 June 1997 (apart from three months in 2001). He was located and detained on 30 October 2003. It was only after the applicant was taken into detention, in fact three months and three weeks after that date, that the application was filed for review in this Court.
In the present case the only explanation given by the applicant for the delay is that he instructed his previous migration agent to lodge the application well before the date by which it had to be lodged; his agent did not communicate with him properly; and he did not receive the letter from the delegate because he was living with one of his friends in his place for a few weeks.[35] Those circumstances relate to the failure to lodge the application with the Tribunal within time. They do not offer any explanation for the subsequent delay.
The only explanation offered by the applicant for the subsequent delay is that “I was writing to different authorities to overcome my delay in filling into the Refugee Review Tribunal, which was not my fault, I was a victim of circumstances.” On the evidence, the applicant was not actively writing to authorities during the period after the RRT’s decision. Quite apart from unexplained periods of four to six weeks, there are three extremely long periods, of two years and three months, two years and two months and one year and ten months, when the applicant did nothing. He was not awaiting a decision on an application to the Minister, nor were proceedings pending in a court. This is not a case like SZAOV v Minister for Immigration[36] where the entire intervening period was spent engaging in a class action, which explained the delay. No attempt has been made in the present case to explain the three lengthy periods.
No satisfactory explanation has been provided for the excessive delay. As held in VQAN v Minister for Immigration,[37] awaiting the outcome of an application for intervention under s.417 of the Act is not a satisfactory explanation.
(ii) Course of action taken by applicant
During the two distinct periods following the discontinuance of the Federal Court and High Court proceedings, the applicant applied for decisions under s.48B and 417 of the Act. In Daniel Goldberg J held that by writing to the Minister under s 417 of the Act, the applicants engaged in a course of action which:
[35] Affidavit of applicant, sworn on 27 April 2004, paras 5, 10.
[36] [2004] FMCA 223 at [15] –[17].
[37] [2003] FCA 1541 at [15].
is indicative of a decision by [the applicant] to abandon any course that would seek to challenge the decision … on grounds available under the Act or otherwise at law
…
This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was proposed to accept that the Tribunal’s decision was correct and that he did not intend to challenge that decision further in the Court.[38]
[38] (2003) 205 ALR 198, 202 at [14].
Goldberg J referred to five other cases where the Court drew the same inference from an applicant’s invocation of s.417.[39] Heerey J adopted the same approach in Re Ruddock; Ex parte LX[40] and VQAN v Minister for Immigration.[41] Weinberg J also took the view in Applicant VUAD of 2003 v Minister for Immigration[42] that seeking judicial review and intervention under s.417 are “inconsistent courses”[43] in that the s.417 application indicates acceptance of the validity of the decision. In any event there was no legal impediment to the applicant’s pursuing judicial review while also pursing ministerial intervention.[44]
[39] (2003) 205 ALR 198, 202 at [14].
[40] [2003] FCA 561 at [42].
[41] [2003] FCA 1541 at [15].
[42] [2003] FCA 1331.
[43] [2003] FCA 1331 at [19].
[44] Applicant M29 of 2001 v Minister for Immigration [2003] FCA 1266 at [12].
(iii) Alternative avenue of review
The scheme of Parts 7 and 8 of the Act is designed to ensure that a person who is refused a protection visa seeks review by the RRT before seeking review by the Court. This is consistent with another part of the scheme, that decisions reviewable by the [Refugee] Review Tribunal should in the first instance be reviewed by that Tribunal, whose decisions are then reviewable by the Court. With the exception of limited classes of decisions,[45] review by the Court is intended to be confined to review of decisions made by these Tribunals, which effectively replace the decisions under review. Sub-sections (1) and (6) of s.476 are designed to effect that legislative intention.
[45] Act ss.474(4),(5), 500.
The expression “privative clause decision” in s.476(6) of the Act directs attention to s.474(2). The legislative intention was no doubt that the reference be made for the limited purpose of picking up, through the definition of “privative clause decision”, the general definition of a decisions made under the Act, in similar fashion to the definition of “decision to which this Act applies” in s.3(1) of the ADJR Act. The unintended consequence of the drafting, in particular of s.476(6),[46] is that the reasoning in Plaintiff S157/2002 applies to primary decisions which may be reviewable for nullifying error. However, the legislative intention apparent from the scheme as a whole is that applicants should utilise their right to seek review by the RRT before seeking review by the Court.
[46] Absent the reference in s.476(6) to s. 474(2), which brings on its tail the reasoning in Plaintiff S157/2002, it was open to Parliament to simply describe the jurisdiction of the Court in the limited fashion intended, as not extending to review of decisions of the delegate. That could have been achieved by avoiding defining of “primary decision” in s.476(6) by reference to the definition of “privative clause decision” and of course the other references to privative clause decisions found in Division 2.
It is well established that the existence of a right of statutory appeal is not a bar to the grant of prohibition where there is a manifest want of jurisdiction.[47] The general principles guiding the discretion which otherwise exists to decline relief were set out in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd[48] as follows:
[47] R v Judges of Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (Adamson's Case) (1979) 143 CLR 190, 202, 216, 240; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, 194; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 137 at [149] per Kirby J..
[48] (1949) 78 CLR 389.
For example the writs may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party had been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.[49]
[49] (1949) 78 CLR 389, 400.
Those principles were re-affirmed by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala.[50] Accordingly the existence of a right of statutory appeal may warrant the exercise of the Court's discretion to refuse relief.[51] Relief by way of the prerogative remedies may be refused on the discretionary ground that there is another “equally effective and convenient remedy”.[52] For example, in Du Pont (Australia) Ltd v Comptroller-General of Customs[53] Heerey J applied the principle in Ozone Theatres, declining to grant relief under s.39B of the Judiciary Act because review by the Anti-Dumping Authority provided an equally convenient and beneficial avenue of review of the Comptroller-General’s decision. Similarly in Wyeth Australia Pty Ltd v Minister for Health and Aged Care[54] the discretion to decline jurisdiction under s.39B was exercised, even though the applicant faced statutory restrictions in the AAT review upon the introduction of new information, since that was intended under the statutory scheme.
Some avenues of review may not be as convenient, beneficial or effectual as prerogative relief.[55] However where the alternative avenue of review by a specialist tribunal is de novo review on the merits, which will resolve fully and directly any complaint which would be dealt with in judicial review, it should first be exhausted.[56]
In exceptional circumstances (apart from that of manifest want of jurisdiction) the prerogative remedies may be issued notwithstanding the existence of a right of merits review by a specialist tribunal. In the particular circumstances of the case the statutory appeal may fall short of the protection and procedures offered in judicial review. In other cases the entitlement of the person to procedural fairness in the making of the original decision would otherwise go unremedied.[57]
The provisions of Part 7 of the Act for merits review by the RRT indicate that the discretion of the Court to decline relief in respect of a delegate’s decision should ordinarily be exercised. The legislative intention is in particular apparent in s.476(6)(b) of the Act which, considered in combination with s.476(1) but otherwise without reference to s.474(2), provides that even where a decision of a delegate would have been reviewable by the RRT had review been sought within a specified period, the Court has no jurisdiction to review that decision of the delegate. The scheme of the Act is to provide in Part 7 for review on the merits by the RRT of all decisions by delegates refusing protection visas. Any applicant for a protection visa who is physically present in the migration zone may seek review. The hearing procedure accords the applicant an opportunity appear to give evidence and present argument[58] and is subject to the more general principles of procedural fairness.[59]
However, the present case raises the question whether the fact that the applicant’s entitlement to seek review by a specialist tribunal has been excluded by failure to meet a time restriction prescribed by the Act for lodging the application for review, of itself constitutes an exceptional circumstance such that the discretion to decline relief should not be exercised.
The Federal Court has a discretion similar to the discretion at general law described in Ozone Theatres, pursuant to s.10(2)(b)(ii) of the ADJR Act. This is a discretion to decline jurisdiction under the ADJR Act on the ground that “adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure”. Consistently with the general law approach to the discretion to decline relief, the Federal Court has held that an avenue for review on the merits as well as the legality of the decision, constitutes “adequate provision”.[60]
The case law on s 10(2)(b)(ii) of the ADJR Act provides little guidance on how the discretion is to be exercised in circumstance where, by failure to invoke the alternative avenue of review within a prescribed time limit, it no longer has jurisdiction. In Riverside Nursing Care Pty Ltd (Administrator appointed) v Bishop[61] Sundberg J held that since no reconsideration decision had yet been made so as to ground the jurisdiction of the AAT, considerations of urgency indicated that the discretion under s.10(2)(b)(ii) should not be exercised. In Kimberly-Clark Ltd v Commissioner of Patents[62] the Court held that an applicant may be “entitled” to seek review by the other review body, within s.10(2)(b)(ii), even if there is no entitlement at the time when the Federal Court is exercising its discretion, for example, because a time restriction on applying for review has been exceeded. While that was a case where it remained possible that the AAT would exercise its discretion to grant an extension of time, Jenkinson J appeared to frame his approach to entitlement to seek review more broadly to cover cases where there may be little prospect of obtaining an extension. In Ord Air Charter Pty Ltd v Civil Aviation Safety Authority[63] the applicant had ADJR Act proceedings stood over while it commenced AAT review, then withdrew the application for review by the AAT on the first day of the hearing in the AAT. Carr J held that since the applicant had approbated and reprobated in its choice of avenue of review, the discretion under s.10(2)(b)(ii) should be exercised to decline jurisdiction.[64]
The cases on s.10(2)(b)(ii) provide some guidance but the immediately applicable authority is Ozone Theatres. In the submission of the respondent the availability of review by the RRT, irrespective of the failure to meet the time limit, indicate that the discretion to decline relief should be exercised.
In the present case the excessive delay of six years and nine months in seeking review indicates the Court should exercise its discretion to decline relief. That discretionary basis for refusing relief is reinforced by the further considerations that the applicant adopted a course of action inconsistent with challenging the delegate’s decision, merits review of the delegate’s decision by the RRT was in principle available, and the outcome of the decision could not have been affected even if the grounds argued were established.
[50] (2000) 204 CLR 82, 108 at [56].
[51] R v Judges of Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (Adamson's Case) (1979) 143 CLR 190, 202, 216. The exercise of the discretion to decline to exercise jurisdiction is said to be compelling where the proceedings before the other tribunal are on foot, particularly where it is presided over by a judge with power to decide on the merits: Commissioner of Police v Gordon [1981] 1 NSWLR 675, 690 per Moffit P.
[52] R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720, 728 per Lord Widgery CJ. See R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22, 43-4, 52; Adler v District Court of New South Wales (1990) 19 NSWLR 317, 338; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, 508 per Kirby P; Gardner v General Manager of the Territory Insurance Office (1991) 104 FLR 287.
[53] (1993) 30 ALD 829, 832.
[54] [2000] FCA 330 at [47]. The case also involved an exercise of discretion under s 10(2)(b)(ii) of the ADJR Act, considered below.
[55] R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720, 728; R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22 at 41; Stevenson v Hardy (1994) 63 SASR 86.
[56] Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, 508-513 per Kirby P; Weinal v Judge Parsons (1994) 62 SASR 501; NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (NSW) (2001) 53 NSWLR 559, 564-5.
[57] Macksville & District Hospital v Mayze (1987) 10 NSWLR 708, 722 per Kirby P. See generally Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
[58] Act s 425.
[59] Re Minister for Immigration; Ex parte Miah (2001) 179 ALR 238.
[60] Anderson v Commissioner for Employees' Compensation (1986) 11 FCR 210; Yarmirr v Australian Telecommunications Corp (1990) 96 ALR 739; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 17 ALD 551 (on appeal Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 90 ALR 280, 286-7; Saitti Pty Ltd v Commonwealth [2001] FCA 817 at [28].
[61] (2000) 60 ALD 704 at [5]. See also SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 at [87], [88], [105].
[62] 1988) 83 ALR 714.
[63] [2000] FCA 1545.
[64] [2000] FCA 1545 at [101] – [105].
Ms Allars did not press her submissions in relation to futility, noting that if there was jurisdictional error on the basis that the delegate had overlooked a relevant consideration or breached an inviolable pre‑condition to the exercise of power requiring consideration of certain matters, it could hardly be said that a re‑examination of the visa claim would be futile.
I reject Ms Allars’ submissions in relation to the alternative remedy. There would be good grounds for refusing relief in the exercise of discretion if the applicant had available to him merits review before a review tribunal which he had for no good reason failed to exercise: NAUV v Minister for Immigration [2003] FCA 1319 at [53]. However, in this case the applicant was not able to avail himself of merits review because those representing him did not lodge a review application in time. The application was only just out of time. I had that circumstance in mind when I decided that I should conduct a full hearing on the application insofar as it related to the decision of the delegate. In Re Minister for Immigration, ex parte Miah (2001) 179 ALR 238 at [223] His Honour Kirby J said:
The circumstances of this case suggest that consideration should be given to amendment of the Act to permit extension of time in proper cases where a person seeking review of an adverse decision on a protection visa becomes out of time, as happened here. If there is no discretion to extend time, whatever the excuse for the default or the merits of the case, a serious legal inflexibility arises. Unless repaired, the consequence is certain to be more cases like the present invoking the original jurisdiction of this Court.
I heartily agree with His Honour. I regard it as unfortunate that the RRT does not have a discretion to extend time for consideration of applications for review of delegates’ decisions. If the RRT did have such a discretion, much unnecessary litigation could be avoided. Where (as here) an applicant is unreasonably deprived of merits review by inflexible legislation on time limits, it would in my view be inappropriate for the Court to refuse relief on the basis that a more appropriate remedy is available. At present this Court and the Federal Court have jurisdiction to review primary decisions that are not privative clause decisions by reason of jurisdictional error. If, as appears likely, that jurisdiction is removed[65], the problem identified by Kirby J will remain, but the burden of dealing with it will once again be dumped in the lap of the High Court in its original jurisdiction. That would be a result that flies in the face of recently expressed government policy.
[65] See the Migration Amendment (Judicial Review) Bill 2004
However, I agree with Ms Allars that by reason of the delay on the part of the applicant, the Court should refuse relief in the exercise of discretion even if jurisdictional error had been established. Although the applicant has over the past seven years been engaged in fruitless litigation in the Federal Court and in attempts to secure Ministerial intervention pursuant to ss.417 and 48B of the Migration Act, that does not fully and satisfactorily explain the delay in bringing these present proceedings. The delay involved is substantially longer than the delay considered by the High Court in Miah. Further, the Minister’s Department acted promptly in dealing with the requests for Ministerial intervention. In addition, the applicant was at all times over the period since the delegate’s decision able to raise before the High Court the issues he is now raising before this Court. Indeed, the applicant did commence proceedings in the High Court as part of the class action. In my view, the applicant has had ample opportunity to pursue his rights of review in respect of the delegate’s decision before the High Court and he has unduly sat upon those rights. In particular, the applicant has not satisfactorily explained his delay since he discontinued his proceedings in the High Court on 20 March 2001. His impecuniosity is not an adequate explanation. Fresh approaches to the Minister under s.417 and s.48B took only a couple of months. The delay in bringing these proceedings has, in the circumstances, been excessive.
The other question is whether the various approaches to the Minister under s.417 and s.48B constitute an abandonment of judicial review challenges. I take the view that such an implication cannot arise when there were in fact judicial review proceedings between the Ministerial approaches and the present court proceedings. In this case, there were approaches to the Minister both before and after the various court proceedings instituted by the applicant prior to the present proceedings. It is unnecessary to consider whether the most recent approaches to the Minister gave rise to any indication that the applicant had abandoned judicial review as delay provides a sufficient reason for the Court to withhold relief.
Costs
On the question of costs, costs should follow the event. The Minister has been put to significant expense in dealing with two hearings before the Court on this matter. In SZCTH v Minister for Immigration (No 1) I reserved the question of costs. The Minister was partially successful in that proceeding in having the application dismissed summarily.
I will allow the sum of $2,000 in respect of the Minister’s party/party costs in relation to that hearing. In respect of the balance of the proceedings I will allow the sum of $4,000 on a party/party basis. The Minister should therefore receive $6,000 by way of costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 May 2004
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