SZEMJ v Minister for Immigration
[2007] FMCA 913
•26 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEMJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 913 |
| MIGRATION – Refugee – application for reinstatement pursuant to Rule 16.05 – lack of utility on reinstatement – no prospects of success – unwarrantable and unexplained delay – request pursuant to s.417 not sufficient to explain delay – application dismissed. |
| Migration Act 1958, ss.417, 422B, 422A, 424A(2), 441A, 424A(1), 424A, 424A(3), 430, 424, 439, 440, 476(1),351 Migration Legislation Amendment Act (No.1) 1998 Federal Magistrates Court Rules 2001, rr. 16.05, 13.03A(c), 16.05(2)(a) |
| Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520 and [2004] FCAFC 293 |
| Applicant: | SZEMJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2959 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 April 2007 |
| Date of Last Submission: | 20 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. R. White |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application to this Court made on 2 March 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2959 of 2004
| SZEMJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed on 2 March 2007 which, in effect, seeks that orders made by this Court on 4 February 2005 be set aside pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (“the Rules”). Those orders related to an earlier application by the applicant filed in this Court on 29 September 2004, and amended on 3 December 2004, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 June 2001, which affirmed an earlier decision by a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a national of Fiji of Indian ethnicity who arrived in Australia on 30 June 2000.
At the hearing before the Court, the applicant was unrepresented.
Her understanding and fluency in English was sufficient for her to only occasionally make use of the interpreter in the Hindi language who had been provided to assist her. Mr. White appeared for the respondent Minister (“the Minister”).
The material before the Court is:
(1)An application filed on 29 September 2004, seeking review of the Tribunal’s decision. The application was filed by the applicant’s then solicitor, John B. Hajje and Associates.
(2)An affidavit made on 28 September 2004, filed 29 September 2004, made by the applicant’s then solicitor.
(3)A notice of objection to competency filed by the Minister’s solicitors on 7 October 2004.
(4)Various orders, made by consent on 11 October 2004, for the conduct of proceedings before the Court, including Order 11, granting liberty to either party to apply for listing for further directions. The first Court date in this matter was on 11 October 2004. The applicant’s then solicitor and the first respondent’s solicitor attended on that date.
(5)A Court Book (“CB”) of relevant documents filed on 29 October 2004.
(6)An amended application filed 3 December 2004 on the applicant’s behalf, by her then solicitors.
(7)On 22 November 2004, the matter was listed for further directions on 4 February 2005.
(8)
Orders made on 4 February 2005, dismissing the applicant’s amended application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to non appearance by the applicant (see also the affidavit of Emma Jane Knight of
1 February 2005, a solicitor in the employ of the respondent solicitors).
(9)An application by the applicant filed on 2 March 2007, to set aside orders made on 4 February 2005.
(10)An affidavit of the applicant of 2 March 2007 filed on the same date.
(11)The first respondent’s written submissions on issues arising out of the hearing before the Court, filed on 20 April 2007 (I note no subsequent submissions were received from the applicant).
The following were tendered and marked as the respondent’s exhibits during the course of the hearing before the Court:
(a)Respondent’s Exhibit 1 – a letter from Harish Prasad & Associates, solicitors on behalf of the applicant, requesting intervention by the Minister, pursuant to s.417 of the Migration Act 1958 (Cth) (“the Act”), dated 5 August 2005.
(b)Respondent’s Exhibit 2 – a response from Minister’s department dated 12 October 2006, advising that the Minister decided not to consider exercising the power to intervene.
(c)
Respondent’s Exhibit 3 – a letter from the applicant dated
31 October 2006 to the then Minister, seeking the Minister’s intervention, pursuant to s.417 of the Act.
(d)Respondent’s Exhibit 4 – a response from the Minister’s department (undated), advising that the information provided did not come within Ministerial guidelines for referral to the Minister for consideration.
(e)Respondent’s Exhibit 5 – a third request by applicant, dated 10 January 2007, seeking intervention, pursuant to s.417 of the Act.
(f)Respondent’s Exhibit 6 – a response by the Minister’s department, dated 28 March 2007, again advising unsuccessful outcome of this request.
I note the Tribunal’s decision record is before the Court as Annexure “A” to the affidavit of John B. Hajje, the applicant’s then solicitor, made on 28 September 2004, and is reproduced in the Court Book (“CB”), filed in relation to the original proceedings (see CB 210 to CB 219).
I note attached to the Minister’s submissions is a chronology of events which provides a relevant background to the present application:
“ BACKGROUND
29 August 1972
Applicant born in Fiji.
3 June 2000
Applicant Arrived in Australia
DIMIA
31 July 2000
Applicant lodged application for a protection visa
12 October 2000
Delegate of respondent refused application for a protection visa
RRT
22 October 2000
Applicant applied to RRT for review of delegate’s decision
1 June 2001
RRT hearing
22 June 2001
Delegate’s decision affirmed by RRT
High Court
S1495 of 2003
17 August 2001
Applicant joined Lie class action (S89 of 1999)
25 November 2002
Gaudron J ordered that the matter be remitted to the FC
29 May 2003
Affidavit of Adrian Joel lodged in the HC annexing copies of the delegate’s decision, RRT decision and a draft order nisi
Federal Court
N1786 of 2003
9 February 2004
Directions hearing
20 February 2004
Application dismissed by Emmett J
Federal Magistrates Court
SYG 2959/2004
29 September 2004
Application filed
7 October 2004
Notice of objection to competency filed
11 October 2004
Directions hearing
29 October 2004
Court book filed
3 December 2004
Amended application filed
4 February 2005
Non compliance listing – matter dismissed for non attendance
2 March 2007
Application to set aside orders
13 April 2007
Hearing – set aside application
S.417 Applications
Application 1
5 August 2005
Application to the Minister
12 October 2005
Application declined
Application 2
31 October 2006
Application to the Minister
29 November 2006
Application declined
Application 3
10 January 2007
Application to the Minister
28 March 2007
Application declined”
The applicant seeks that orders made by this Court on 4 February 2005 be set aside. On that day, the Court made orders dismissing the applicant’s earlier application to the Court which sought review of the Tribunal’s decision of 29 September 2004. The applicant relies on Rule 16.05(2)(a) of the Rules, as the orders made dismissing her application were made in her absence. The issues for consideration are:
1)The circumstances which led to the applicant’s non appearance at the hearing on 4 February 2005 and any explanation for this.
2)The utility of reinstatement of the original application. Even if the Court were to accept the applicant’s explanation for non attendance, would the reinstatement be an exercise in futility.
3)The Minister presses that in relation to the latter issue, the issue of delay is of “critical consideration”. That is, the relief sought by the applicant should in any event be refused given the unwarrantable and unexplained delay by the applicant in these proceedings.
The applicant’s evidence
At the hearing, the applicant gave evidence, by way of her affidavit of 2 March 2007, and also during cross-examination by Mr. White.
Part of the applicant’s evidence (which mirrored submissions made to the Court) was that the political situation in Fiji was “totally uncertain” and that she feared persecution from the “Fiji natives” because of her Indian ethnicity and that protection from the authorities was not available to her. Plainly, these matters, as put, did not rise above a request for impermissible merits review (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259) (“Wu Shan Liang”).
The applicant’s evidence, relevant to the issues currently before the Court, was:
(1)She was assisted in the making of the application of 2 March 2007 by her uncle, who wrote out the application, but who put in it what she essentially wanted the document to contain.
(2)While she received some assistance from her uncle in the writing of the matters contained in the affidavit of 2 March 2004 (“He just helped me a little bit”), that she understood what was in the affidavit and that it was her affidavit.
(3)Notwithstanding this evidence, the applicant subsequently was unable to explain the matters contained, in particular, in paragraph 3 of the affidavit, (“I can’t understand”). She then said, that whilst they were her words, she did not understand what they meant.
(4)She pursued judicial review of the Tribunal decision soon after the decision was handed down by commencing proceedings in August 2001 in the High Court of Australia. For this purpose, she confirmed that she had retained solicitor Mr. Adrian Joel, although she specifically dealt with a “Mr Naveendra Sahay”.
(5)Following the ultimate dismissal of these proceedings in about February 2004, she engaged another solicitor (“Vasso”) for the purpose of making an application to the Federal Magistrates Court (it appears that “Vasso” worked with John B. Hajje and Associates, who filed the original application to this Court on the applicant’s behalf.)
(6)She and her husband were assisted by her uncle in paying these solicitors to assist them, and that they spoke to this solicitor about seeking judicial review of the Tribunal’s decision.
(7)She and her husband maintained monthly contact with these solicitors, with her uncle’s assistance, who would sometimes contact solicitors on their behalf.
(8)Her solicitors withdrew her application to the Court.
(9)She knew “somewhere about” 4 February 2005 that she had missed the hearing and when she asked the solicitor, he told her that her application had been withdrawn from the Court.
(10)Following this, she and her uncle took “all my papers and things” and went to see another solicitor.
(11)The applicant confirmed that her solicitors acted without her approval or authority to withdraw her case, but she took no action whatsoever in relation to those solicitors to express her dissatisfaction, and simply went to another solicitor.
(12)The applicant was unable to explain the 7 month delay between the dismissal in February 2004 of proceedings commenced in the High Court, and the filing of the application in this Court on
29 September 2004 (“I can’t remember what we have done in that time”).(13)She confirmed that the solicitors who acted for her in the matter before the Federal Magistrates Court did not tell her to seek Ministerial intervention. When it was pointed out to the applicant that this was in conflict with what appeared at paragraph 4 of her affidavit, she confirmed that the withdrawal of her case, which was action taken by her then solicitor, was separate to subsequent action taken to seek the Minister’s intervention.
(14)Initially the applicant said that this action was taken generally with the assistance of a “Mr. Bharati”. The applicant explained that he assisted with the preparation of documents but did not “use his letterhead”.
(15)Subsequently, it emerged that the “first” request pursuant to s.417 of the Act (Respondent’s Exhibit 1) was sent by solicitors, Harish Prasad & Associates, on the applicant’s behalf.
(16)Following the unsuccessful response on that occasion, she moved to consult Mr. Bharati. Further, that the second request for Ministerial intervention, although not written on his letterhead, was prepared with his assistance (Respondent’s Exhibit 3).
(17)Initially, the applicant gave evidence that the third request for Ministerial intervention was sent without assistance (“Then we start doing our own then”). The applicant, subsequently, gave evidence that this also was prepared with the assistance of
“Mr. Bharati”.(18)In relation to the current application before the Court, the applicant was unable to explain why this application was made prior to receiving notification of the outcome of the third request for Ministerial intervention, beyond saying that: “We decided to do our own”, and that: “We appealed it again. We thought maybe there will be any changes.”
Applicant’s explanation for failure to attend Court
I do not accept the applicant’s explanation for her failure to attend Court on 4 February 2005. The applicant’s evidence is that, other than for a “monthly” enquiry, she left “matters” (in context specifically the conduct of the litigation) in the hands of her solicitors. Her evidence is, that soon after the date of the dismissal, she was told by her solicitor that her case had been “withdrawn”.
I have great difficulty in accepting the applicant’s explanation. There is nothing on the Court file to show that there was any withdrawal of her application by way of notice of discontinuance, or other communication as is required by the rules of this Court. What is left, therefore, is that, neither the applicant nor her then solicitors appeared at the relevant hearing, with the result that the application was dismissed.
The applicant’s evidence now, plainly after becoming aware that her case had been “discontinued”, was that her solicitor had “lied” to her and told her that her case had been “withdrawn”. However, in these circumstances, despite her solicitor’s acting without her instruction and authority, she made no complaint whatsoever, either directly to the Court, or to relevant authorities concerned with the conduct of solicitors. Instead, she appeared at the time to acquiesce with whatever action (or, rather, inaction), had been taken allegedly by the solicitors. Further, on her own evidence, she consulted other solicitors, and sought to pursue Ministerial intervention, rather than employ the services of those other solicitors, to have her matter reinstated before this Court in a timely fashion. That is, soon after 4 February 2005, when she stated she first heard that her matter had been discontinued.
The applicant makes serious allegations about a solicitor (an officer of the Supreme Court of New South Wales), which this Court is not prepared to accept simply on the apparently confused, and self-serving evidence, of the applicant alone. This evidence also reveals some shrugging acceptance of what had occurred, and the subsequent pursuit, with legal advice, of alternative action in seeking Ministerial intervention, rather than seeking to pursue judicial review of the Tribunal’s decision. I agree with Mr. White’s submission that the applicant’s evidence that she did not know anything about the dismissal of the court application, or what to do to remedy her situation in February 2005 should not be accepted in the face of very clear evidence from the applicant concerning her ability to both actively, and repeatedly, pursue previous Court action (including the action before the High Court) and to subsequently pursue intervention by the Minister.
In applications of this type, the Court is often faced with self-represented applicants from a non-English speaking background, from a cultural and political situation vastly different to that found in Australia, who with no other support in Australia, assert ignorance about how to pursue their objectives in seeking protection as refugees. The applicant’s circumstances, and the applicant’s demeanour and presentation in the witness box before the Court, reveal a very different situation. The applicant’s evidence was that she had recourse to her uncle’s help, and that he provided not only financial, but other assistance in preparing court documents on her behalf. In all, she appears to have been able to obtain the assistance of four different solicitors, and on one occasion, on her own evidence (one version), prepared and sent her own request for Ministerial intervention (the third request).
Further, I also agree with submissions by the Minister that the applicant’s evidence was such as to convey the impression that she was seeking to provide the most beneficial answers in relation to her interests during cross-examination, rather than providing evidence in a truthful manner. The applicant initially gave clear evidence that the application of 2 March 2007, and the affidavit filed on the same date in support, were “her” documents, and that she wrote, and understood, what was contained in them. Subsequent questioning, however, revealed that she could not provide a meaningful explanation in relation to important aspects of what was contained in these documents. She finally agreed that she did not understand what was put in them and did not write them. In fact they had been written by her uncle. Further, the applicant gave evidence when specifically asked how the original application could be dismissed without her knowledge, the applicant’s evidence was that she sometimes “missed” the “monthly contact” with her solicitor, and that, in any event, it was probably not a “monthly contact”. These instances give rise to the view that the applicant sought to tailor her responses. This reflects adversely on her general credibility.
What is clear is, that on 4 February 2005, the applicant’s solicitors were on clear notice of the need for either the solicitors and/or the applicant to appear to deal with the respondent’s application for summary dismissal (see the affidavit with annexures of Emma Jane Knight of 1 February 2005). Neither the solicitors for the applicant, nor the applicant herself, appeared on that day. For all the reasons set out above, I do not accept that the applicant has provided a satisfactory explanation for that failure to attend.
Utility of reinstatement
The original application to the Court, and the amended application, largely contains assertions, stated to be grounds, which are difficult to comprehend, especially in the absence of meaningful particulars. To some extent, the applicant’s complaints as expressed in these applications appear to seek impermissible merits review from the Court.
However, the original application does refer to a denial of procedural fairness. In part, this appears to be based on the assertion that the applicant was denied an opportunity to be heard before the Tribunal. This is difficult to understand in the absence of further particulars (and given the lack of explanation by the applicant despite opportunity to do so), as the applicant was given the opportunity to attend a hearing before the Tribunal. As the material before the Court in the Court Book reveals, she attended such a hearing and gave oral evidence on 1 June 2001 (CB 205).
Nonetheless, what can be seen to remain is a complaint that the Tribunal failed in its obligation to accord procedural fairness to the applicant. Given the date of the making of the application for review to the Tribunal, and the date of the Tribunal’s decision, this is not a Tribunal decision to which s.422B of the Act applies. The Tribunal’s decision was “made” on 5 June 2001 and handed down on 22 June 2001. Section 422B of the Act came into operation on 4 July 2002, with the effect of making the matters set out in Division 4 of Part 7 of the Act, the exhaustive statement of the requirements of the natural justice hearing rule (absent bias).
As against the obligations of procedural fairness at general law, the Tribunal provided an opportunity for the applicant to put forward her claims at a hearing and to provide evidence and explanations. She was assisted by an adviser who was also present at the hearing. In the context of the applicant being given the opportunity to put her claims to the Tribunal, the Tribunal’s decision record reveals that it considered all the claims made including submissions made by the adviser. The Tribunal’s account of the hearing reveals that it put to the applicant the two issues which were determinative of its reasons for affirming the decision under review. As reproduced at CB 214.8 to CB 215.2, the Tribunal put to the applicant for comment the issue of the omission from her “initial statement” of “her personal claims of her house being attacked” and country information available to the Tribunal about the political situation, and protection available, in Fiji, at the time of its consideration. The Tribunal clearly took the applicant’s and adviser’s replies and submissions into account (see CB 218). In all, I cannot see any failure of procedural fairness obligations at general law.
In the context of statutory obligations however, an earlier version of s.424A of the Act (the current version having come into operation on 10 August 2001), was relevant to the Tribunal’s consideration in this context. Relevantly, s.424A of the Act obliged the Tribunal to give to the applicant information that it considered would be the reason, or part of the reason, for affirming the decision under review. The then s.424A(2) of the Act was in the following terms:
“The invitation must be given to the applicant by one of the methods specified in s.441A. However, this subsection does not apply if the applicant is in immigration detention.”
The current version of s.441A of the Act became operational on
10 August 2001, again, after the relevant making and handing down of the Tribunal’s decision. The relevant version of s.441A of the Act was that inserted into the Act by operation of Schedule 3 (Item 12) of the Migration Legislation Amendment Act (No.1) 1998. Importantly, all the methods that were specified for the giving of information to an applicant for the purposes of s.424A(1) of the Act, contemplated that such information would be given by way of a “document”.
Since the making of the Tribunal’s decision, the majority High Court judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (18 May 2005) (“SAAP”) has provided guidance on how the current version of s.424A of the Act should be understood. In SAAP the High Court, by majority, held that s.424A applies to information attained, or given to it, throughout the review process. A failure by the Tribunal to comply with the requirements of s.424A(1) and (2) (unless the information comes within s.424A(3)(a) or (b)), will, on the view of the majority, be jurisdictional error.
While the High Court was concerned with the current version of s.424A of the Act, I do not see that the version relevant to this Tribunal’s decision is different in the relevant particular. That is, information on which the Tribunal was to rely in affirming the delegate’s decision, had to be put to the applicant by one of the methods specified in s.441A of the Act. At the relevant time, the relevant section of the Act contemplated the giving of a “document” to the applicant.
The majority Full Court judgment in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27 (21 July 2001) clearly post-dated the making of this Tribunal’s decision. However, its effect on this Tribunal’s decision must also be seen now in light of the illumination provided by SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) (23 February 2006). Relevantly, and in effect (with reference to the current version of s.424A(3) of the Act, which was the version applicable at the time of the Tribunal’s decision) any information relied on by the Tribunal, even in part, as the reason for affirming the delegate’s decision under review, which was not either country information or not information which the applicant gave for the purposes of the application, had to be put to the applicant in writing.
The Tribunal’s “Findings and Reasons” are reproduced in the Court Book at CB 218 to CB 219. The Tribunal was not satisfied with the applicant’s claims to have been harmed by indigenous Fijians because she was “of Indian origin”. As such claims were not made in her original application for a protection visa, the Tribunal took the view that, had such “frightening events really occurred”, the applicant would have insisted they be recorded in her original application (CB 218.3). This was one basis for the Tribunal’s decision.
Further, the Tribunal found that it was confirmed in this view by the applicant’s indication that she intended to return to Fiji “once things had settled down” (CB 218.3). This is presumably with reference to the applicant’s statement reproduced at CB 24 (particularly Item 2). Plainly, in reaching this view, the Tribunal relied on information that was contained in the applicant’s original application for a protection visa. With the authorities referred to above in mind, this information was not provided to the Tribunal for the purposes of the review. With reference to SZEEU (at [221]), the Tribunal’s comparison of the information contained in the protection visa application as being “absent information” subsequently provided to the Tribunal, reveals that the Tribunal failed to meet its obligation as set out in s.424A(1) of the Act, even as it applied at the time of the making of its decision. On this basis, jurisdictional error is revealed in the Tribunal’s decision.
However, submissions were made by Mr. White that a plain reading of the Tribunal’s decision record reveals that a separate and independent basis for sustaining the decision is also to be found in the Tribunal’s “Findings and Reasons”. The Minister relies on what was said in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] (see also SZEEU at [233] per Allsop J).
The Tribunal was also satisfied and found that there was no real chance that the applicant would face persecution because of her ethnicity, should she return to Fiji. In making this finding, the Tribunal relied on independent country information available to it (CB 215.3 to CB 218.2), which showed that the risk of harm “to Indian Fijians is low”, and that, in any event, the police and military authorities provided an adequate level of protection. This was a separate and independent finding by the Tribunal, that given the changed circumstances in Fiji, and the restoration of law and order, the applicant would have effective protection available to her should she return, irrespective of any claimed acts of past harm.
I also considered the applicant’s grounds as stated in the amended application filed on 3 December 2004 (noting in particular that it was filed with the assistance of solicitors).
The first stated ground in the application is that the Tribunal member stated he agreed with the adviser’s submission that there was selective harassment of Indian Fijians at the hands of ethnic Fijians. The application asserts that this was a finding of fact that constituted persecution for a Convention reason, and that the Tribunal fell into jurisdictional error when, in its ultimate conclusion, it decided otherwise. On the applicant’s own evidence, the solicitors who assisted her with the filing of this application continued to be her solicitors until some little time after 4 February 2005 (the date of the dismissal of the application). The applicant’s solicitors (and indeed the applicant herself), therefore had, since orders were made at the first Court date (11 October 2004), an opportunity to file a transcript of the hearing before the Tribunal. At the first Court date, by way of Order 2 made by consent, the applicant was to file such transcripts by 15 November 2004. Plainly, she did not do so. There is nothing before the Court to support the first stated ground of the amended application.
The only account before the Court of what occurred at the hearing is the Tribunal’s own account set out in its decision record. The Tribunal’s decision record is before the Court as Annexure “A” to the affidavit of John B. Hajje, the applicant’s then solicitor, made on 20 September 2004, and is reproduced in the Court Book, filed in relation to the original proceedings (see CB 210 to CB 219).
Relevantly, in that part of the decision record reproduced at CB 214.7, the Tribunal makes reference to the adviser’s various submissions about the situation in Fiji and makes reference to “a large amount of information, principally from news reports off the Internet”, that the adviser had submitted. The Tribunal then reports:
“He has usefully highlighted the parts he considered important. In particular, the articles from August 2000 refer to reports of harassment of Indian Fijians.” (CB 214.7).
On any reading, this cannot be said to be an agreement by the Tribunal with the adviser’s submission that there was selective harassment of Indian Fijians at the hands of ethnic Fijians. The applicant’s stated ground in the amended application would fail on this alone. Even if by some means it could be said that the Tribunal had agreed, whatever had occurred at the hearing, whatever the Tribunal member may have said to the adviser, can hardly be said on its own to be a finding of fact. Further, the last sentence of ground one plainly seeks impermissible merits review. Whether “the facts demonstrate” that returning to Fiji (“refoulement”) was not an option available to the applicant is a matter for the Tribunal as the decision maker “par excellence” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[2000] HCA 1, per McHugh J. at [67]).
The second stated ground asserts that the applicant was denied an opportunity at the hearing to explain why she believed that the harm arose as a result of her ethnicity. Again, in the time available, and as provided by orders made at the first court date, no transcript of the hearing was provided to the Court. The Tribunal’s account of what occurred at the hearing amply demonstrates that the applicant was given opportunity to explain why she should be given protection in Australia. This was with her adviser present, who also made submissions in support. This ground also does not succeed.
The third stated ground, which alleges a failure to take into account a relevant consideration, namely, the “constant selective harassment” because of her ethnicity, similarly does not succeed. The Tribunal specifically turned its mind to the issue of harassment by indigenous Fijians of persons of Indian ethnicity in Fiji.
The applicant’s fourth stated ground, which complains that the Tribunal used critical adverse information obtained after the delegate’s decision which was not provided to her before, or at the hearing, is plainly contradicted by the only account of what occurred at the hearing before the Court now. The Tribunal’s account is, relevantly, reproduced at CB 214.9. The Tribunal specifically put to the applicant country information about the police and military establishing law and order and providing protection to Indian Fijians. The applicant is reported as stating that “it does not take long for the situation to turn around”. Further, (at CB 215.2), the applicant’s adviser is reported as submitting that the military could not enforce law in Fiji. This complaint also does not succeed.
No particulars whatsoever have been provided to support the fifth stated ground, that is, the allegation that the Tribunal “misapplied the test”, or misinformed the applicant about “the test”. The application does not state which “test” it refers to. However, the Tribunal’s decision record reveals that the Tribunal was focussed on answering the question as to whether the applicant had a well-founded fear of persecution for a Convention reason if she were to return to Fiji. There is nothing in the material before the Court to show that the Tribunal misapplied the relevant test, or in some way misled the applicant about the test that it was to apply.
Nor does the sixth stated ground of complaint, that the Tribunal’s reasoning was irrational or so illogical as to indicate a failure to perform the “review function at all” succeed on what is currently before the Court. The application does not say how the decision was deficient in this regard, but any plain reading of the decision record reveals that such a charge cannot be sustained.
Stated ground seven in the amended application asserts that the Tribunal failed to give “proper and adequate” reasons for the decision. The Tribunal did give reasons for its decision. Presumably this complaint is with reference to the Tribunal’s obligation pursuant to s.430 of the Act. I cannot see that the Tribunal failed in its obligations in this regard. That the applicant does not agree with the reasons given does not of itself establish a failure of the Tribunal’s statutory obligations.
The eighth stated ground of the amended application also complains that the Tribunal erred in failing to consider all of the claims and issues put forward by the applicant. Any plain reading of all of the material contained in the Court Book reveals that the Tribunal considered all of the applicant’s claims. Essentially, these were, that as a Fijian of Indian ethnicity, she was subject to harm and persecution in Fiji following the coup in that country in May 2000. The Tribunal dealt with this claim. The integers of her claim relating to the instances of specific acts of harm, which she claimed to have suffered, were also dealt with by the Tribunal, such that any complaint that it failed to consider all of her claims, including an integer of her claims, would not succeed. I have already set out that the way the Tribunal dealt with one aspect of her claims breached the obligation contained in s.424A(1) of the Act. I have dealt with this above. But this does not reveal that the Tribunal failed to deal with this aspect of her claims. In fact, the contrary is the case.
Nor in seeking to, reinstate this application for consideration by the Court, has the applicant put anything further before the Court to indicate some other basis on which the Tribunal’s decision could be said to be affected by jurisdiction error.
Paragraph 3 of the applicant’s affidavit of 2 March 2007 repeats some of the complaints put forward in the amended application and to a large extent, taking issue with the Tribunal’s findings in such a way as to invite impermissible merits review by the Court. I note further, that the reference that the Tribunal breached s.424 of the Act does not assist the applicant. That section provides discretion to the Tribunal as to whether it wishes to seek additional information from the applicant. The mandatory aspect of that section is that if it engages such a course of action, it must have regard to the applicant’s answer.
To the extent that this complaint may really be a complaint about s.424A of the Act, I have already dealt with that, as I have already dealt with s.430 of the Act. Further, the applicant’s references to ss.439 and 440 of the Act do not appear to have any relevance whatsoever to the applicant’s complaints.
The applicant’s first three sentences at paragraph 4 of her affidavit similarly do not reveal jurisdictional error on the part of the Tribunal. Nor is the Court in a position to make findings about the political situation in Fiji, or to set aside its orders on the basis that the applicant’s son and daughter were born in Australia and have adopted “the Australian way”. In all, therefore, on the material available to the Court, the applicant has not materially or relevantly added to the complaints articulated in the amended application of 3 December 2004. None of which, other than as dealt with above, reveal jurisdictional error on the part of the Tribunal.
Unwarrantable or unexplained delay
Even if I were to accept the applicant’s explanation for her absence from Court on 4 February 2005 (which I do not), and even if I were able to discern on the material before the Court that there was some basis establishing an entitlement to the relief claimed by way of the originating application, I would still refuse to grant any such relief to the applicant on the basis of unwarrantable and unexplained delay in her seeking judicial review in this Court, in relation to the Tribunal’s decision.
There are two relevant periods of delay in this matter. The Tribunal’s decision was made on 5 June 2001 and handed down on 22 June 2001. The applicant, in effect, sought review of the Tribunal’s decision in the High Court of Australia. In relation to the issue of delay, I note these proceedings were commenced in a timely fashion in August 2001. The applicant gave evidence that these proceedings were ultimately dismissed in February 2004. The application to this Court was filed in September 2004, some seven months later. The applicant was unable to provide any explanation whatsoever as to why she delayed for seven months before seeking to lodge her application for review in this Court (the first relevant period).
In Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 at 495 to 496, McHugh J said:
“Independently of the merits of this 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.”
In Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82, the High Court confirmed delay as a discretionary basis for refusing relief (in the context of seeking relief by way of constitutional writs). See in particular [52] to [54] per Gaudron and Gummow JJ and [148] to [149] per Kirby J. See also s.476(1) of the Act for the jurisdiction of this Court. Further, see McHugh J. in SAAP at [80]:
“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.”
See also Hayne J. at [211] and Kirby J. at [174].
The applicant’s evidence is that, “around” (soon after) 4 February 2005, she found out that her application was no longer on foot. It was not until 2 March 2007, that is, two years later, that she took any action to reinstate her application before the Court (the second relevant period). The orders that the applicant now seeks, following reinstatement, are the same as were sought in her originating application. That is, that her matter be redirected to the Tribunal for reconsideration.
The applicant’s explanation for this two year delay was that she pursued the avenue of making repeated requests to the respondent Minister to intervene, pursuant to s.417 of the Act. Ultimately, two years later, she sought to reopen her case because she understood that there may have been changes in the law that would lead to her application being successful, and that she would have a better chance of success. She arrived at that conclusion with her husband, having consulted her uncle, who said that it was “worth trying”.
By way of written submissions, the Minister referred the Court to SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 (“SZIDH”), where Jessup J., in a matter on appeal from this Court, considered whether the Court correctly exercised the discretion to refuse a grant for the reinstatement of proceedings, pursuant to Rule 16.05(2)(a) of this Court’s rules. In particular, Mr White submitted that the Court in SZIDH determined that relevant principles were stated in the Full Court decision of Davies v Paget (1986) 10 FCR 226, which, in turn, had approved what was said by Lord Wright in Evans v Bartlam [1937] AC 473 at 489:
“A discretion necessarily involves a latitude of individual choice according to the particular circumstances and differs from a case where the decision follows ex debito justitiae, once the facts are ascertained. In a case like the present there is a judgment, which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set it aside should be exercised in his favour. The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown, the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication.”
As set out above, I cannot see that the applicant has established a “prima facie” entitlement to the relief that she seeks.
But even if I had found otherwise, I would not exercise the discretion in favour of the applicant, given the applicant’s failure to explain the delay, firstly, in relation to the initial seven month period between the cessation of the High Court proceedings, and the commencement of proceedings in this Court, and secondly, in relation to the two year period between the cessation of proceedings before this Court and the applicant’s current attempt to revive those proceedings two years later.
During the latter period the applicant states that she pursued requests to the Minister pursuant to s.417 of the Act. The issue of whether the making of a request pursuant to s.417 of the Act rather than pursuing judicial review of a Tribunal’s decision, can constitute a sufficient explanation for delay has been the subject of considerable consideration before the Federal Court:
(1)In Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 (“Applicant A2 of 2002”), von Doussa J., held that an applicant’s action to pursue Ministerial intervention pursuant to s.417 of the Act indicated a decision on the part of that applicant to accept the Tribunal’s decision and take another course other than judicial review (at [9]). His Honour stated that once an applicant takes that course, he or she “must live with the consequences of the delay that occurred” (at [9]). Nor did the period of time spent awaiting a decision pursuant to the request provide an adequate explanation for the delay in seeking judicial review.
(2)Grey J. in Batuwantudawa,in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684, held that the making of a request, pursuant to s.351 of the Act (the similar relevant section relating to requests for Ministerial intervention in cases where an unfavourable decision has been made by the Migration Review Tribunal) “tended to suggest that the applicant was prepared to accept as correct the decision of the Tribunal and that she did not intend to avail herself” of judicial review (at [9]). The Court held that making a request pursuant to s.351 of the Act and seeking relief in the Court were “inconsistent courses” (at [9]).
(3)In Re Ruddock; Ex Parte LX [2003] FCA 561 at [42], Heerey J. held that, the language of s.417 of the Act, that the power may only be exercised personally by the Minister, suggested that it was reserved for rare cases and that it would be, in the usual course, unwise for the applicant to rely on the success of such a request, when other avenues of possible relief, for example, an application to a Court, were available as of right.
(4)In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 (“Applicant M29”), Weinberg J. agreed with the observation in Applicant A2 of 2002 (at [12]).
(5)In Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [18] –[20], Weinberg J. reached a similar conclusion to that in Applicant M29 (see also VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186).
(6)In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198, an extension of time was refused in circumstances where an applicant had lodged an application for review in the Federal Court and this was dismissed in 2000. The applicant then pursued Ministerial intervention while a decision on that request was pending. This was delayed for nine months before filing an application in the High Court. The Court found that the request pursuant to s.417 of the Act was “inconsistent” in challenging the Tribunal’s decision in judicial review. Goldberg J. stated:
“The taking of that course of action by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the tribunal 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 prepared to accept that the tribunal’s decision was correct and that he did not intend to challenge that decision further in the court. A similar approach has been taken in a number of cases in this court…” (at [14]).
These decisions were reviewed by the Full Court in M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520 (“M211 of 2003”). The Full Court found that making a request pursuant to s.417 of the Act was conduct indicating acceptance of the Tribunal’s decision and that awaiting the outcome of that request did not provide an adequate explanation for delay (at [22]-[24]). The Court found that, in circumstances where an applicant delayed for three years whilst pursuing a s.417 request and awaiting its outcome, and before subsequently pursuing a complaint to the Commonwealth Ombudsman, the appellant had offered no real explanation for the delay in seeking the relief (at [21] and [36]). The Full Court stated:
“Although the primary judge did not dismiss the application for prohibition on the ground of the appellant’s lengthy delay in seeking constitutional writs, that, and the making of the s.417 application reinforce the propriety of the proceeding having been brought to an end.”(at [36]).
This approach has been followed subsequently in:
(1)S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 (“S58 of 2003”). In this case, Madgwick J. held that in the absence of evidence, the Court is entitled to infer that an applicant who makes a request pursuant to s.417 of the Act accepts the Tribunal decision (at [10]). Relevantly, if at the time of making the decision, the applicant is advised by a firm of solicitors and does not give evidence as to some other reason for the delay, then the inference may be drawn that he accepts the Tribunal’s decision (at [11]).
(2)In SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457, Jacobson J. accepted the approach in S58 of 2003 (at [42]). (I should just note that, in that case, Jacobson J. allowed the appeal from the dismissal of the application on the ground of delay because he was not satisfied that there was evidence before the Federal Magistrates Court as to the date on which the appellant became aware of the Tribunal’s decision).
(3)In M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24, Goldberg J. held that an explanation for delay was less than satisfactory in circumstances where an applicant, having been involved in a class action, then made a request pursuant to s.417 of the Act, with a delay of nine months awaiting the outcome, and then lodged an application for review in the Federal Magistrate’s Court, with a total period of delay from the date of the Tribunal’s decision being just over three years. While the Court resolved the issue in that case on the basis of the lack of prospects of success in the application, at [18] and [20] (as is the case now before this Court), the Court observed that it was apparent that the applicant made a conscious decision, through his advisers, to abandon the route of seeking to review the Tribunal’s decision, and rather, decided to follow the alternative route of making a request pursuant to s.417 of the Act (at [18]).
However, I note that in Applicants M160/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 219 ALR 140 (“ Applicants M160/2003”), the Court held that the making of a request pursuant to s.417 of the Act could not constitute waiver in the strict sense, or waiver by election (at [10] – [11]). Finkelstein J. rejected the proposition that “the mere making” of a request pursuant to s.417 of the Act is conduct which indicates that an applicant does not intend to take judicial review proceedings on the basis that such a request may be pursued before, concurrently with, or after proceedings for judicial review (at [11]-[12]). However, in SZGPZ v Minister for Immigration Multicultural and Indigenous Affairs [2006] FCA 683 at [25]-[26], Collier J. followed Applicant A2 of 2002, Applicant M29 and Applicant M211 of 2003, rather than Applicants M160/2003.
I further note that there are some decisions of this Court: NAGG of 2002 v Minister for Immigration & Anor [2007] FMCA 84, SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661 (relying on Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316) and SZHEH vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1301 at [36]-[41], where the explanation of pursuing a “s.417 request” was found to be acceptable in explaining delay.
While each of the circumstances in each of those cases can, in my view, be distinguished from the circumstances before the Court now, to the extent that these cases appear to take a different view to what was set out in M211 of 2003, with respect, I take the view that M211 of 2003 is binding on this Court and plainly should be followed.
The applicant’s evidence was that she did not know that her application to this Court had been dismissed on 4 February 2005. She claimed in evidence that she had been told by her solicitor soon after that the case had been “withdrawn”. I have already set out above the reasons as to why I do not accept the applicant’s evidence in this regard. But even if that evidence were to be accepted, it was also the applicant’s clear evidence that (one way or the other) she knew soon after (“about the time”) that her proceedings before this Court were no longer on foot.
The applicant’s evidence was that even though she did not know what her solicitor had done (until he told her shortly thereafter) she took absolutely no action, either to complain about the solicitor, purportedly acting without instruction, or to immediately reinstate her application before the Court. Rather, with advice both legal and non legal, she chose to pursue an alternative course of action, that is, in seeking Ministerial intervention. Importantly, she did not do this just once, but on three separate occasions. That the applicant chose to reinstate her proceedings two years later, on the basis that, by that time, she thought she would have better prospects of success before the Court, only serves to reinforce that in February 2005, the applicant consciously abandoned proceedings before this Court (immediately after she had been advised by her solicitor). What arises from the applicant’s own evidence is that she did not feel at that time that she had prospects of success before the Court.
The applicant’s evidence is that she had decided now to pursue the previously abandoned proceedings before this Court because there was a better chance of success. The applicant’s evidence is that she (soon after being informed of the “withdrawal” of her application in February 2004) abandoned those proceedings. She then pursued s.417 requests. In applying relevant authorities as set out above, this does not offer a real explanation for the delay in seeking the relief. That she has sought to resurrect these proceedings now must be seen in the context of having persistently, but unsuccessfully pursued an alternate, inconsistent course.
I also agree with the Minister’s submissions that the applicant’s evidence shows that her actions were not such as it could be said they were consistent with someone who has been the unwitting victim of bad advice and representation from her lawyers. The applicant had advice from a number of solicitors, and from her uncle, who, on her own evidence, appeared to be active, and literate, in supporting her situation. In all, therefore, I do not accept that the applicant has provided a satisfactory explanation for the two year delay in seeking to reactivate her proceedings before this Court. She has provided no explanation whatsoever for the seven month delay previously.
Therefore, even if I had found that there was some basis for requiring the applicant’s application to be reinstated before this Court (which I have not), there would be no utility in reinstating the applicant’s application now as, in any event, I would not exercise discretion in granting the ultimate relief that the applicant seeks for the reasons set out immediately above.
Conclusion
In all, therefore, I do not accept the applicant’s explanation as to why proceedings (one way or the other) were said to be abandoned in February 2005. I cannot see, on the material before me (which is extensive, given that it contains the relevant Court Book filed in anticipation of a final hearing in this matter) that the applicant would succeed, even if the matter were to go through to another hearing. Ultimately, even if that were the case, I would refuse to exercise the discretion on the basis of unwarrantable delay. The application made on 2 March 2007 is therefore dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 26 June 2007
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