SZEPU v Minister for Immigration

[2005] FMCA 1675

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPU v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1675

MIGRATION – Refugee – fear of persecution based on political opinion – Tribunal’s comments about the authenticity of documents – Wednesbury unreasonableness – procedural fairness – Tribunal’s obligations pursuant to s.424 of the Act – Tribunal’s obligations pursuant to ss.430(1)(c) and (d) of the Act – bias – unwarrantable delay – no reviewable error – application dismissed.

Migration Act 1958, ss.415, 417, 420(2)(b), 422B, 424A , 424A(1), 424A(3)(a), 430A, 430B, 430(1)(c), 430(1)(d), 441A, 441C(4), 474, 486A

Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Re: Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002; A [2003] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal[2005] FCAFC 92
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
WAGP of 2002 [2002] 124 FCR 276
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 576
Re Batuwantudawa[2003] FCA 684
Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 823
Applicant M29 of 2001 v Minister  for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1266
Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1331
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Applicant: SZEPU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3172 of 2004

Judgment of: Nicholls  FM

Hearing date: 3 November 2005

Date of Last Submission: 15 November 2005

Delivered at: Sydney

Delivered on: 13 December 2005

REPRESENTATION

Counsel for the Applicant: Mr. C. Jayawardena

Solicitors for the Applicant: Chandra Jayawardena Solicitors

Counsel for the Respondent: Ms. Crawley

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the fixed amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3172 of 2004

SZEPU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 26 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 August 2001 and handed down on 25 September 2001 to affirm the decision of a delegate of the first respondent to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings. 

2. The applicant is an Indian national who arrived in Australia on 19 December 1998 and who applied for a protection visa with the first respondent's Department on 25 January 1999. His claims are set out in his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 24, and in particular at CB 20 to CB 21, in his application to the Tribunal at CB 42 to CB 45, and in particular at CB 44, and in the Tribunal's account of the hearing that it conducted with the applicant on 26 March 2001. The Tribunal's account of what occurred at that hearing is in its decision record at CB 76. The applicant also submitted a number of documents in support of his claims to the Tribunal and these are reproduced at CB 49 to CB 61. The applicant claimed to fear persecution in India because of his political opinion and in particular he claimed:

   1)He has been a member of the Communist Party of India – the Marxist-Leninist Naxalites (CPI - ML) Party since 1967 and that the Indian authorities disliked this party and killed many of its members.

   2)The aim of this party is to ensure “equal rights” amongst all people in India.

   3)In 1969 he was arrested many times and beaten by the police. He fled to Assam and lived there, and in the following 20 years he alternated between Punjab and Assam fleeing from the police in each of those places. He also claimed to have “wandered” throughout India and remained in hiding under an assumed name and that he was arrested and tortured in “many States.”

   4)He claimed that in more recent years prior to coming to Australia he was a leader of a group of Naxalite CPI - ML members and was involved in “peasants’ rights.”

   5)That he had been rejected by his wife and children because of his political activities which led to the police harassing his family, and that he came to Australia with the assistance of an “agent” who assisted with the provision of a passport and passage through the airport in India. He feared that if he returned to India he would be persecuted because of his political profile.

3. The Tribunal's “Findings and Reasons” are set out in its decision record at CB 78.2 to CB 80.7. The Tribunal found:

   1)Having regard to independent country information in relation to Naxalites, who were described as “a group of people dedicated to violence”, that because the applicant claimed never to have been involved in violence, or the call for violence, or to have stood for violent solutions to social problems, it could not be satisfied that he was in fact a Naxalite (CB 78.5).

   2)It was not satisfied that police would believe him to be a Naxalite simply for reciting poems calling for workers rights. In part the Tribunal referred to independent country information which was before it that suggested that the Indian government generally respected the rights of peaceful assembly except in certain times of trouble in areas of extreme strife (CB 78.6).

   3)Further, the Tribunal was not satisfied that reciting a revolutionary poem in public would cause an arrest by authorities given the license to free speech in India. It reasoned that if the applicant was specifically inciting violence he could be arrested and cautioned or even charged, but it was not satisfied that the active inciting of a violent overthrow of the government could be fairly termed an exercise of a right to freely expressing political opinion within Convention terms. In any event, it accepted at face value the applicant’s evidence that he had never called for violence and therefore was not satisfied that the Indian authorities would have arrested him over the political content of his poetry (CB 79.4).

   4)The Tribunal was not satisfied that the applicant was wanted by police. In this regard it looked at the applicant's claims that he was “hotly” pursued for about 30 years and that he had been arrested many times and freed. The Tribunal found it could not be satisfied that the police would have kept releasing him as he claimed if they had wanted to keep him in detention. It was not satisfied by the applicant's explanation that the reason why he had been freed without charge on so many occasions was because of a lack of evidence. It found it implausible that a person in the applicant's claimed circumstances could have escaped arrest by adopting a false name. It found his claims to be “inconsistent”, “confused” and “implausible” (CB 79.7).

   5)The Tribunal was not satisfied that a wanted person using his own passport would have been able to leave India, and independent evidence available to the Tribunal did not convince the Tribunal that the “agent” would have been able to affect an escape as alleged by the applicant.

   The Tribunal concluded, at CB 80.1, that there was “an overwhelming lack of credibility” in the applicant's claims regarding his political profile, and activities, and alleged fear of persecution for political reasons and was of the firm view that he had fabricated a “colourful set of claims” to support an application for a protection visa. The Tribunal further dealt with:

   1)The documents submitted by the applicant in support of his claims. In this regard it found that while the documents did not “disprove” the applicant's claims, the inherent lack of plausibility in the claims was not overcome by the documents. The Tribunal also had some concerns about the documents that were apparent on the face of the documents (CB 80.2).

   2)The general lack of credibility in the applicant's claims and as a result, the Tribunal gave no weight to evidence provided by a witness at the hearing before the Tribunal who had stated that as a child he had heard from older relatives that the applicant was being pursued by the police and was in hiding (CB 80.4).

4. For the applicant I have before me the originating application to this Court filed on 26 August 2004, and an affidavit sworn on 25 October 2004 and filed in Court on 26 October 2004 which asserts matters clearly going to the merits of the applicant's claims before the Tribunal. In any event solicitors for the applicant, who continue to represent the applicant before me, filed an amended application on 12 April 2005, with particulars. This asserts five grounds of review. The applicant's solicitors also filed an outline of submissions on 28 October 2005. While reference is made to the grounds in the amended application for review, for a considerable part of these submissions, they do not appear to relate to the grounds of review as set out in the amended application. The applicant also filed, on 12 April 2005, an affidavit affirmed by him on 8 April 2005 (although I note in contradiction the declaration at the end of the affidavit states that the affidavit was “sworn” not “affirmed”). In any event, it annexes a purported Transcript (“T”) of the hearing the Tribunal conducted with the applicant on 26 March 2001. While the applicant's written submissions make reference to the hearing before the Tribunal, the references as to what happened at the hearing are taken from the Tribunal's account as set out in its decision record.  Mr. C. Jayawardena appeared at the hearing before me on behalf of the applicant. Ms. K. Crawley appeared for the respondents. I also have written submissions from the respondents filed in Court on 31 October 2005.

5. At the commencement of the hearing solicitors for both parties claimed not to have received relevant documentation from the other. Ms. Crawley claimed that the respondent had not been served with the applicant's affidavit affirmed/sworn on 8 April 2005, and filed in Court on 12 April 2005, the applicant’s affidavit filed on 26 October 2004 and the applicant’s amended application filed on 12 April 2005. The affidavit of 8 April 2005 as I have set out above annexed a purported Transcript of the hearing conducted by the Tribunal with the applicant. The applicant’s solicitor Mr. Jayawardena asserted that he had not been served with the respondent’s written submissions. While the parties’ representatives engaged in claim and counterclaim about service of the affidavits, I sought to resolve the issue by granting a short adjournment to both parties to enable them to look at the respective documents.

6. On resumption Ms. Crawley for the respondents only objected to my admitting the applicant's affidavit of 12 April 2005 into evidence on the basis that the affidavit contained a contradiction as to whether it was properly affirmed or sworn. Further, that the annexure which purported to be a Transcript of the hearing was not prepared by the applicant, and the affidavit provided no evidence of the provenance of the annexure, and on the basis that the affidavit contained legal conclusions which are properly a matter for the Court, and on the ground of relevance. I note that the applicant had not made any reference in the accompanying submission which appeared to rely on the affidavit, or the purported Transcript of proceedings before the Tribunal. I gave Mr. Jayawardena the opportunity to establish the relevance of the material contained in the annexure to the affidavit with respect to the grounds of review that he had put forward. He was unable to establish this relevance. Further, Mr. Jayawardena did not press the affidavit of 26 October 2004. In any event I proceeded with the hearing on the basis that if anything did come up in the course of his submissions I would hear him further on the issue of the admissibility of the affidavit of 8 April 2005 and the purported Transcript of the Tribunal’s hearing with the applicant.

7. In relation to the respondent’s written submissions, Mr. Jayawardena argued that the late service of these submissions, that is, the service of the submissions at the hearing before me, meant that he was unaware that the respondent would raise and press the issue of unwarrantable delay in relation to the filing of his clients application some three years after the Tribunal handed down its decision. Mr. Jayawardena submitted that he was at a disadvantage in not having notice of the respondent’s position in this regard. I take the view that the potential for the respondents to raise this issue was quite apparent on the face of the circumstances as presented. Mr. Jayawardena would have known, on accepting his client’s instructions, that the Tribunal decision and application to the Court were over three years apart. Nonetheless, I gave Mr. Jayawardena a further opportunity, subsequent to the hearing before me, to make any further written submissions that he cared to make in relation to the issue of unwarrantable delay. Mr. Jayawardena made these submissions, filed on 14 November 2005, and I also have subsequent submissions filed 15 November 2005 by the respondents in reply.

8. The applicant's first ground of review in the amended application is that the Tribunal made a “seriously jurisdictional error” by making a conclusion contrary to the facts and all the information available to it. The amended application makes reference to the Tribunal's decision record, and in particular CB 80.3:

   “Given the general lack of credibility in the applicant's claims I have given no weight to evidence provided by a “witness” at the hearing who said that, while a child, he had heard from older relatives that the applicant was being pursued by the police and was hiding. In itself, that “witness evidence” is unsatisfactory in supporting the applicant's claims…”

   The argument that appears to arise from the applicant's comments in the amended application is given that the applicant had clearly stated that he had been subjected to harm in India, the failure on the part of the Tribunal to assess the “witness evidence” amounted to a “neglect of the Tribunal's responsibility” towards the applicant and that this was serious jurisdictional error. In his written submissions Mr. Jayawardena specifically makes reference to “substantial justice and the merits of the case as required by s.420(1)(b)” of the Migration Act 1958 (“the Act”) and then says that the applicant was “branded as unreliable and untruthful” without the Tribunal “first satisfying itself whether the information given by the applicant was right or wrong.” Given there is no s.420(1)(b) of the Act, it is clear, particularly with the reference to “substantial justice”, that the applicant was referring to s.420(2)(b).

9. At the hearing before me Mr. Jayawardena sought to support this complaint with reference to the particular raised in the second ground of complaint in the amended application. His submission was that the “Tribunal must act in accordance to substantial justice and the merits of the case” and that  the Tribunal failed to do this in that it looked at the documents submitted by the applicant in support of his claim and had suspicions and made remarks that were not open to it. He submitted that if the Tribunal had suspicions then it should have referred the documents to an “expert examiner” who would be able to provide expert evidence. He claimed that the Tribunal had done something which was outside its jurisdiction. I understood him to be saying that the Tribunal had acted outside its professional capacity. In particular, Mr. Jayawardena referred me to the Tribunal's account of the applicant’s claims and evidence and the Tribunal’s reference to the documents submitted by the applicant in support of his claims. Mr. Jayawardena pointed to the Tribunal's comments in its decision record at CB 75.9:

   “For example: the alleged police arrest warrant and the affidavits of Jalour Singh and Atma Singh are typed in the same font and in all three, “J” is set very high in a word, seen very clearly in “Jalour” occurring on all three documents; “Lopon”, occurring in all three documents, has a very high “L” and the following “o” set at an identical downward slant from the “L”; “Moga”, in all three documents, has the “Mo” starting high and with a downward slant like in “Lopon” described previously; the “H” in “Harinder” is set high in all three documents; the numbers “19”, given in starting dates “19…” are squeezed together in all three documents.

   The other three affidavits, types in a different font from the document above, share the same font. They all have the word “Dhaliwal” set in an identically wavy line of script.”

10. In my view what use the Tribunal then made of these observations must also be seen in the context of the Tribunal's observations in the preceding paragraph at CB 75.7:

    “The applicant submitted several documents in support of his claims. They included a simply-typed letter minus any letterhead which is purported to be a police arrest warrant for the applicant dated May 1998, and various affidavits by people in Punjab stating that police had been targeting the applicant in 1969, 1974 and 1998 in search of the applicant because he was a Naxalite and recited “revolutionary” poems on public platforms, criticising the government. I note that the standard peculiarities in the typing occur across all documents.”

    The Tribunal then proceeds with the specific passage complained of by Mr. Jayawardena. What the Tribunal made of these observations is found in its “Findings and Reasons” at CB 80.2 where the Tribunal stated:

    “The documentation that he has supplied does not convince me otherwise. In fact, even to an inexpert eye, the so-called affidavits and arrest warrant appear to have been typed on common typewriters. While I can accept that friends and relatives providing affidavits for him could have used the same typewriter, I find it quite implausible that a police arrest warrant and two affidavits from persons apparently sympathetic to the subject of the “warrant” would have been typed on the same machine or by the same hand. It is not the case that the documents disprove the applicant’s claims but that I find that the inherent lack of plausibility in the claims is not overcome by the documents.”

1. Mr. Jayawardena’s complaint in this regard must be set against the context within which the Tribunal dealt with that documentation. It is clear on the material before me that the Tribunal looked at all of the applicant's claims as made to it, both in writing, and in what the applicant told the Tribunal at the hearing before it. The Tribunal found that on the material before it the applicant was not a credible witness, and that his claims had an “overwhelming” lack of credibility. On the material before me these findings were all open to the Tribunal to make on what was before it. This was consistent with its function as the decision maker “par excellance” Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”). In relation to the specific complaint made in the amended application under ground 1, the Tribunal was under no obligation to look “first” at the evidence put forward by the applicant's witness. The Tribunal was entitled to look at the claims as put by the applicant. On those claims it came to a clear view as to the applicant’s credibility. I note Re: Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002; A [2003] HCA 30 (“S20”) and in particular per their Honours McHugh and Gummow at page [49] which in relation to the Tribunal’s approach to corroborative evidence and credibility said:

   "In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the Tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant."

2. When the Tribunal then looked at the two sets of corroborating “evidence” put forward by the applicant (one being the evidence put forward by the applicant’s witness, and the other being “the documents”), the “well” as to the applicant's credibility had been well and truly poisoned.  The Tribunal, as set out in its “Findings and Reasons”, had clearly looked first at the applicant’s claims as put forward by the applicant himself and it had clearly rejected those claims for the reasons set out at CB 78 and CB 79. The Tribunal found the applicant’s claims to be, variously: not satisfactory, inconsistent, confused and implausible and ultimately as set out at CB 80.1:

   “In all, there is an overwhelming lack of credibility in the applicant’s claims regarding his political profile, activities, and alleged fear of persecution for political reasons. I am of the firm view that he has fabricated a colourful set of claims to support an application for a protection visa.”

3. It was clearly therefore open to the Tribunal to give no weight to the evidence provided by the witness at the hearing on the basis of the applicant’s general lack of credibility. But in any event, the Tribunal found that this witness evidence in itself was unsatisfactory in supporting the applicant’s claims as the witness, at best, was only able to say at the hearing that while he was a child he had heard from older relatives that the applicant was being pursued by police and was in hiding. The documents similarly must be seen in the context of the Tribunal's finding separately on what the applicant had put to the Tribunal, as not being sufficient to convince the Tribunal otherwise than its finding that the applicant had fabricated his claims. I will deal with Mr. Jayawardena’s specific complaint raised at the hearing before me in relation to these documents when looking at ground 2 below. But it is important to note in relation to ground 1 that the Tribunal, in any event, did not rely on these documents to reject the applicant’s claims. The Tribunal itself says at CB 80.4 “it is not the case that the documents disprove the applicant’s claims”, but that the Tribunal found that the inherent lack of plausibility in the applicant’s claims as found previously is not “overcome” by the documents. I can see no error in how the Tribunal has approached its task in this regard. 

4. The applicant's second complaint is that the Tribunal was “Wednesbury Unreasonable” in relation to how it dealt with the documents put forward by the applicant in support of his claims. The applicant claims the Tribunal embarked on “a voyage to act an Examiner of Questioned Documents (EQD) in a Technical Branch of the Criminal Investigations Department of the Country”. The applicant's claim now, as put forward by Mr. Jayawardena, is that as the Tribunal is a “layman” it cannot “assume the role which no reasonable person would do at all” and that this was contrary to the principle of procedural fairness and amounted to jurisdictional error. Further, Mr. Jayawardena submitted the Tribunal was prejudiced against the applicant in saying that it gave no weight to any of the evidence put forward by the applicant, and that there was a “trend of bias” on the part of the Tribunal. When I pointed out to Mr. Jayawardena that bias had not been raised as a ground for review he submitted that he had not raised bias because he did not want to allege serious bias, but that what he was attempting to submit was that the Tribunal did not accord substantial justice to the applicant in that it relied on its own impression, and that it was not entitled to do so, and that its impression should not have been used in the making of its decision. In relation to the issue of Wednesbury unreasonableness Mr. Jayawardena further submitted that no “reasonable man” could come to the conclusions that the Tribunal did given that the Tribunal was not expert in document examination. By conclusions I understood Mr. Jayawardena to be referring to the observations made by the Tribunal as to the deficiencies apparent on the face of the documents.

5. In dealing with each of these complaints it is important first to understand exactly what the Tribunal has done. I note from the Tribunal's decision record that it does not appear that it sought to set itself up as an expert in document examination. First, the Tribunal makes a clear reference at CB 80.2 to the fact that the matters that it dealt with in this regard were apparent “even to an inexpert eye.” In that context it was clearly open on the face of the documents for the Tribunal to make the comments that it did in relation to these documents.  Further, at CB 75.7 the Tribunal's comments in this regard were not of the type that required scientific or technical training. The comments made by the Tribunal at this part of its decision record were a noting of “standard peculiarities” in the typing. Third, the Tribunal's finding that it is “quite implausible” that a police arrest warrant and affidavits from persons apparently sympathetic to the subject of the warrant would have been typed on the same machine is a finding of fact made by the Tribunal, on the basis of its inexpert eye. In this context, and given the nature of the material before it, this was a finding of fact that was open to the Tribunal. Again, the Tribunal's comments in this regard were not of a type that required scientific or technical training. But importantly, whatever the case in relation to the documents, the Tribunal did not base its decision to reject the applicant's claims on the documents submitted by the applicant. It is quite clear as I have said above, on a plain reading of the Tribunal's decision record, that the Tribunal had already formed a firm view as to the applicant's “colourful set of claims” and had rejected them. Indeed, its finding in relation to the documents purporting to corroborate his claims was:

   “It is not the case that the documents disprove the applicant's claims but that I find that the inherent lack of plausibility in the claims is not overcome by the documents” (CB 80.3)

6. In relation to the complaint that the Tribunal's action in this regard could be said to be Wednesbury Unreasonableness and a breach of “procedural fairness” then I cannot see that the Tribunal's actions were so unreasonable as to fall within these principles. The applicant put forward documents to support his claims. The Tribunal clearly did not purport to act as an expert examiner of documents. It clearly made its observations from the perspective of an inexpert eye. The matters on which it made comment were obvious on the face of the documents. Nor can I see that the matters to which it made comment, but more particularly the one finding that the documents were typed on the same machine, was so unreasonable on what was before it.

7. Nor can I see that the way the Tribunal proceeded in relation to this issue can be said to show a breach of procedural fairness. These were not documents obtained by the Tribunal from a third party. These were documents which the applicant himself had put forward in support of his claims. I cannot see that there was any failure to accord the applicant procedural fairness in the circumstances where the matters noted by the Tribunal, and the limited use made of those observations by the Tribunal were all based on matters that were obvious on the evaluation of the material before it. Nor can I see that this is a situation where the Tribunal failed to put its concerns about the documents to the applicant, in the sense that it later held adversely to the applicant based on these documents. The documents were not a key factor in determining the applicant’s credibility, such that preventing the applicant from presenting further argument or evidence in relation to the documents may have altered the assessment of the lack of credibility of his claims. Applicants before the Tribunal clearly have a right to know “the case against them”, but where the applicant himself put forward material which contains obvious elements as noted by the Tribunal, and in any event where it cannot be said to be a key factor in determining the applicant’s credibility, I can see in those circumstances no denial of procedural fairness to the applicant. Clearly, the Tribunal had already formed a very strong view about the applicant’s credibility. This was not derived from the documents put forward by the applicant. The Tribunal's dealing with these documents was to find that they could not overcome its key finding, already made, about the applicant’s credibility.

8. In relation to bias to the extent that this may arise as a complaint from what Mr. Jayawardena put to me during the course of the hearing, I note that allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. An allegation of bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. Further, alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28, [27]-[32]). The applicant has not put forward evidence to show any such bias on the part of the Tribunal. The applicant’s sole reliance on the Tribunal’s decision record in these circumstances is not sufficient. These complaints are not made out.

9. The applicant's third complaint is that the Tribunal was “procedurally unfair” because it relied on independent country information relating to Naxalites “as being the sole reason or part of the reason for such rejection.” The amended application in this regard also makes reference to s.424A of the Act. At the hearing before me Mr. Jayawardena submitted that in relation to this third ground the Tribunal was “procedurally unfair towards the applicant because the Tribunal used information contrary to what the applicant gave.” Mr. Jayawardena sought to explain this by reference to the Tribunal's decision record at CB 78.3:

   “The country information above shows that the Naxalites are a very dangerous group. They are not simply a Maoist or leftist group, nor are they simply a group which espouses equal rights and improvement of the situation of India's workers and underprivileged classes. India has a vast spectrum of political organisations, NGOs and other groups which espouses such rights, both from the Left and Right (Banks). Many of these parties are represented in federal and State Parliaments and their members are free to espouse their beliefs and criticise the government of the day. The Naxalites, on the other hand, are a group dedicated to violence. It is not the case that only Naxalites espouse workers’ rights etc. and that only some Naxalites factions use violence. The independent evidence before me shows that what distinguishes Naxalite groups from other organisations is their use of violence. Therefore, if the applicant had never been involved in violence or called for violence, or stood for violent solutions to social problems, I am not satisfied that he was a Naxalite.”

   Mr. Jayawardena submitted that the applicant never claimed to be a Naxalite, that all that he had said was that he was a member of the Marxist Leninist Party and that all that he had said was that other people branded him as a Naxalite. I cannot accept this submission. In his application for a protection visa the applicant at CB 21.3 stated:

   “I joined the new faction of the party the Communist Party of India (Marxist). This party firstly splited and I joined the new one the Communist Party of India Marxist Leninist (Naxalite) in 1967”

   The following claims made by the applicant in his application clearly relate to his claimed activities on behalf of this group and claimed acts of harm directed towards Naxalites. For example at CB 21.6:

   “Please be noted Govt. of Punjab led by present Chief…who is a big land owner ordered to kill Naxalite about 70 persons in 1977-78…”

10. In its account of the hearing with the applicant the Tribunal reports that it discussed independent evidence in relation to Naxalites with the applicant, and in particular (CB 76.5) put a range of independent evidence to the applicant on many acts of violence by Naxalites. It described the information as “quite damning”. The applicant is reported as having disagreed with this information. I pointed out to Mr. Jayawardena that this account is in fact supported by the purported Transcript of the hearing provided by the applicant himself to this Court (in relation to which at that time I had not ruled on its admissibility). Clearly at T6 of that Transcript the Tribunal discussed with the applicant the information that it said it had about the “Naxalite party” and specifically at T6.8 shows [It is clear in this context that “Ms Callaghan”  is a reference to “D. Kelleghan” the Tribunal member]:

    “Ms Callaghan:  You belong, you said you joined the Communist Party  of India, Marxist Leninist, Maxolite [sic: “Naxalite”]

    Interpreter:       Yes” (clearly interpreting the applicants answer)

    The Transcript shows in the pages following, that the Tribunal continues to discuss with the applicant his claims in this context. Then at T8.3:

    “Ms Callaghan:  The information I have about the Maxolite [sic] Party   says that its basically its stronghold is in Andhra  Pradesh.

    Interpreter:      No, but there that’s the violent party, we have nothing to do with them, violent faction, we have nothing to do with them.

    Ms Callaghan:  What is the actual name of your party then, it is your party is the Communist Party of India, Marxist Leninist Maxolite [sic], right?

    Applicant:Yes

    Ms Callaghan:   Well that’s the party that’s mentioned.

    Interpreter: They also call themselves the same name, by the same.”

    What follows clearly shows that the Tribunal dealt with the applicant’s claim that there were actually two factions of the Naxalite branch of the Communist Party in India, and put to the applicant further independent country information that was before it.

11. As best as I understood Mr. Jayawardena’s submission then it was that:

    1)The applicant never claimed to be a Naxalite.

    This is clearly contradicted by way of the material before me. Even at the hearing before the Tribunal, and on the applicant's own purported account of what occurred at the hearing, he continued to claim to be a Naxalite, but claimed to be a non-violent Naxalite.

    2)Given that he had claimed to be a non-violent Naxalite the Tribunal should have accepted this assertion instead of accepting the independent information available to it which indicated that what distinguished Naxalite groups from other organisations was their use of violence.

    On what is before me I cannot see that the Tribunal was “procedurally unfair” towards the applicant in relation to this issue. In one sense Mr. Jayawardena’s submissions support the complaint which as put does not rise above a request for impermissible merits review in that he argued that the Tribunal should have accepted the applicant’s assertion that he was a non-violent Naxalite (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

12. First, I note that the Tribunal's decision predates s.422B of the Act. In relation to the statutory requirements set out in s.424A(1) of the Act, the information referred to by the applicant’s complaint now clearly falls within the exception provided for in s.424A(3)(a) from the requirement that information on which the Tribunal relied be put to the applicant pursuant to s.424A(1) (Minister for Immigration & Multicultural Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal[2005] FCAFC 92). In relation to the application of common law principles of procedural fairness there is no jurisdictional error on the part of the Tribunal in rejecting an applicant's claims because they are found to be contrary to the independent country information before it. The Tribunal was entitled to rely on this information. It is quite clear that in the Tribunal's own account of the hearing it conducted with the applicant that independent country information in relation to Naxalites, and how it applied to the applicant's circumstances, was discussed with the applicant at the hearing (CB 76.4). This is supported by the Transcript of the hearing provided by the applicant (see for examples T6 of the applicant’s Transcript through to T9 where the Tribunal actually reads part of this information to the applicant). From the material before me the applicant would have clearly been on notice at least at the hearing conducted before the Tribunal as to the information available to the Tribunal on which it subsequently relied in making findings relating to the Naxalites in India and the applicant's claims in connection with this. The applicant’s Transcript of the hearing reveals that the applicant was given every opportunity to comment on this information. The Tribunal clearly took into account the applicant’s claim that he was a Naxalite, and that he did not believe or participate, in violent activities. On the independent information before it (which it clearly put to the applicant) it found that if the applicant had never been involved or called for violence (as he now claimed), then the Tribunal could not be satisfied that he was a Naxalite. This was a finding that was clearly open to it on the material before it. Further the applicant, who was represented by a migration agent throughout the period of the application before the Tribunal, had about six months from the date of the hearing to the date of the handing down of the Tribunal's decision to put to the Tribunal any contrary independent information which he wanted the Tribunal to consider, or indeed to make any further submissions. He did not do so. The claim that the Tribunal was “procedurally unfair” in relation to its use of this independent country information is not made out.

1. The reference to Article 1F of the Convention and the “Handbook on Procedures and Criteria for Determining Refugee Status” in written submissions drafted by Mr. Jayawardena in support of this complaint is difficult to understand. Nor was Mr. Jayawardena, at the hearing before me, able to assist in this regard. Article 1F of the 1951 Convention relating to the Status of Refugees deals with a group of persons who are or might otherwise be considered to be refugees, but fall within a category of persons who are not considered to be deserving of international protection. Clearly in the case before me, the applicant failed to meet the definition of Refugee set out in Article 1A(2). There is nothing before me to show that the Tribunal relied in any way on Article 1F to reject the applicant’s claims. This ground also fails.

2. The applicant's fourth ground of review is that the Tribunal made jurisdictional error by breaching ss.430(1)(c) and (d) of the Act. This part of the Act of course deals with the Tribunal’s obligation to prepare a decision record and to set out findings on material questions of fact and to refer to evidence or other material in which the findings of fact were based. The applicant again complains of the Tribunal's handling of the documents provided by the applicant in support of his claims. In particular the amended application refers to the Tribunal's statement in its decision record at CB 80.2:

   “In fact, even to an inexpert eye, the so-called affidavits and arrest warrants appear to have been typed on common typewriters. While I can accept that friends and relatives providing affidavits for him could have used the same typewriter, I find it quite implausible that the police arrest warrant and two affidavits from persons apparently sympathetic to the subject of a “warrant” would have been typed on the same machine or by  the same hand. It is not the case the documents disprove the applicant's claims but that I find that the inherent lack of plausibility in the claims is not overcome by the documents.”

   The applicant's complaint appears to be that this finding by the Tribunal is not based on any material questions of fact, or any other material on which the findings of facts were based, and that the Tribunal gave a “general opinion” with no supporting evidence to justify the finding. The assertion is that the Tribunal acted as an “expert” to “summarily” dismiss the documents without obtaining the services of an expert. It is clear that in terms of ss.430(1)(c) and (d) the claim by the applicant is, as is submitted by the respondent, without merit. It is very clear from the Tribunal's decision record that it set out its findings in relation to the material questions of fact, and it referred to the evidence and material upon which those findings were based. As I have set out earlier in this Judgement it was clearly open to the Tribunal to make the comments that it did, which were apparent on the face of the documents that the applicant himself put before it. It is clear that the Tribunal restricted its comments to those things which were apparent to “an inexpert eye”. The Tribunal made no pretence that it was an expert in these matters, nor did the matters that it commented on fall outside the scope of what could be observable by a “layperson”. In any event, the Tribunal's findings in relation to the applicant, that he was not a person to whom Australia owed protection obligation, was clearly based on the overwhelming lack of credibility in the applicant's claims. In relation to the documents the Tribunal did not find that the documents “disproved” the applicant's claims, nor did the Tribunal rely on its findings in relation to these documents to “disprove” the applicant’s claims, but it found that the inherent lack of plausibility in the claims was not “overcome” by the documents. To the extent that it may be said that the Tribunal attributed some lesser weight to this evidence, this was clearly open to the Tribunal. The finding that it made in this regard was clearly open to it on what was before it.
   I cannot see that s.430 of the Act is of assistance to the applicant in this regard.

3. In particular therefore in relation to ss.430(1)(c) and (d) of the Act, Mr. Jayawardena’s submission now appear to be that this part of the Act imposes an obligation on the Tribunal to uncritically accept the evidence put forward by the applicant, particularly in relation to the documents. This must be rejected. Section 430(1)(d) of the Act in particular requires the Tribunal to refer to the evidence or other material on which the findings of fact were based. It does not oblige the Tribunal to uncritically accept that evidence or material as Mr. Jayawardena appears now to assert before me.

4. I further note that in the submissions filed on behalf of the applicant by Mr. Jayawardena, there is a reference under this general complaint to the claim that the Tribunal failed to assess the applicant's claimed political profile and “subjective view of persecution” in accordance with s.415 of the Act. As best as I understood Mr. Jayawardena’s argument in this regard, it was that this section imposed an obligation on the Tribunal to assess the applicant's claims in an articulate and probative manner. This section of course is concerned with certain powers of the Tribunal. With respect to Mr. Jayawardena, his submission before me was not clear on this point. He submitted that the assessment to be made by the Tribunal was to be done in a context where the Tribunal “is not bound by the primary decision maker, he is doing a fresh completely new examination”. This is derived from the powers of the Tribunal set out in s.415 of the Act. But without any connection or further explanation he then proceeded to submit that if the Tribunal found that the applicant was involved in a violent movement and was involved in violent activities, then the Tribunal should have evidence for this. He submitted that the Tribunal relied on independent information and found that the party of which the applicant claimed to be a member was involved in violence. It then looked at the applicant’s claim that he had made to it, that he was not involved in any violent activities. Mr. Jayawardena’s submission complained that the Tribunal accepted that the applicant had not been involved in any violent activities. He then pointed to the Tribunal's finding that if it accepted the applicant's evidence that the applicant never called for violence, then it could not accept his claim that he was a member of the party that was dedicated to violence, which in turn then grounded the Tribunal's finding that it was not satisfied that he was a Naxalite. Mr. Jayawardena referred me to page 11 of the Transcript of the hearing put forward by the applicant, and in particular the Tribunal's statement:

   “Ms. Callaghan: You see, you’re giving a very confused picture that you're implying that you're a person of great notoriety as far as the police are concerned, that you’re very well known, that they managed to chase you even though you were hiding under an assumed name through many states and over about 20 years, that they kept doing this even though they had no real evidence against you and yet you escaped them and yet you arranged to leave India and come here without being arrested.”

   Mr. Jayawardena then submitted, in an attempt to connect the Tribunal's finding with what he had referred to in the Transcript of the hearing that the Tribunal had found that the applicant was “non-violent” even though it had put to the applicant at the hearing that he was a person of great notoriety and was of concern to the police.

5. In my view, again with respect to him, Mr. Jayawardena has sought to confuse two separate issues of the applicant's claims that were clearly dealt with by the Tribunal in a clear and precise way. When the Tribunal made its findings that the applicant had never been involved in violence and therefore could not be satisfied that he was a Naxalite the Tribunal was clearly dealing with the applicant’s specific claim that he was a member of the Communist Party of India-Marxist-Leninist/Naxalite. That is, the Naxalite faction of the CPI-ML. The part of the hearing from the applicant’s transcript referred to by Mr. Jayawardena was clearly a part of the Tribunal's discussion with the applicant going to a separate aspect of the applicant's claims. That is, that he was perceived by the police to be a Naxalite, even though he did not believe, or participate in, any violence. At page 10 of the Transcript of the hearing put forward by Mr. Jayawardena the following is clearly recorded:

   “Ms Callaghan: Did you ever take part in violence?

   Interpreter: No

   Ms Callaghan:  Did you ever call for violence?

   Interpreter:       They used to associate my name with it.”

   The applicant then explained that he did not ever call for violence. The Tribunal then put to the applicant that it could not understand that if he had been arrested and tortured many times across many states by the police why, after going to all the trouble, was he never charged and jailed. The applicant's response was that they did not have any “real facts” about him. The Tribunal pressed as to why the police would bother arresting him given those circumstances. His response was that he was always used to saying things against “the state”. It is clear in this context that the Tribunal then goes on to say (quite understandably) that the applicant was giving a very confused picture and that even though he was saying that he was a person of great notoriety as far as the police were concerned, and that they managed to chase him even though he was in hiding under an assumed name through many states and over 20 years, that they kept doing this even though they had no real evidence against him. In this regard the Tribunal was clearly focusing on the aspect of the applicant's claims that related to the police focus “on him”. The Tribunal looked at the applicant's own evidence, that is, his claims as to what his activities were (these non-violent activities) which comprised of reciting poems calling for workers rights etc. and found that the police would not believe him to be a Naxalite simply for this type of action CB 78.6. Further, it found that reciting a revolutionary poem in public in India would not cause his arrest given the license to free speech in that country (CB 79.2). The Tribunal found that the applicant did not espouse or engage in violent activities and therefore it could not be satisfied that he was a Naxalite. It separately found that the police would not believe him to be a Naxalite simply on the basis of the non-violent actions that he claimed were the extent of his activities. Further, the Tribunal found that these activities would not give rise to any arrest as claimed. The Tribunal clearly and properly addressed the different aspects of the applicant’s claims and with the greatest respect to Mr. Jayawardena, I cannot see the relevance of the example that he puts forward to the complaint that has been made. In any event the example does not support any contradiction or failure in the Tribunal's analysis of the different aspects of the applicant's claims.

6. Further, I cannot accept the applicant's complaint that the Tribunal failed to make its findings in an articulate and probative manner. It is clear that the Tribunal was not satisfied that the applicant was a Naxalite as he had claimed, nor was it satisfied that the applicant was wanted by the police. The Tribunal set out its findings, and gave reasons for its findings. On what is before me it is clear that these findings were open to the Tribunal on the material before it. This complaint also is not made out.

7. The applicant's fifth complaint in the amended application is that the Tribunal was “manifestly unreasonable” in coming to the conclusion that it did in relation to the applicant's credibility and the credibility of his claims. In particular, the applicant refers to CB 80.1:

   “In all, there is an overwhelming lack of credibility in the applicant's claims regarding his political profile, activities, and alleged fear of persecution for political reasons.  I am of the firm view that he has fabricated a colourful set of claims to support an application for a protection visa.”

   The applicant's complaint is that in coming to this “firm view” the Tribunal did so without any cogent evidence to justify it and that its “wilful derogation” of its duties to dismiss the applicant's claims are unfounded, and therefore it was manifestly unreasonable towards the applicant. The part of the Tribunal's decision record complained of by the applicant is of course a summary of what precedes the Tribunal's analysis under the heading of its “Findings and Reasons” which led to its adverse finding on the applicant’s credibility. It is quite clear that the Tribunal's findings in this regard, as I have already said, were open to it. Findings in relation to credibility are of course for the decision maker “par excellance”: per McHugh J., in Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. There is nothing before me to show that the Tribunal was “wilful in the derogation of its duties.” Mr. Jayawardena’s submissions before me, again with the greatest respect, did not rise any higher than to take issue with the Tribunal’s findings on credibility on the basis that the Tribunal did not believe the applicant's claims. He again in this context also complained about the “juxtaposition” relating to the finding that the applicant was not violent and the issues relating to the police perceptions of him. I have already dealt with that above. To the extent that this was put as an example of some failure pursuant to s.415 of the Act I have also already found that that is not the case. Further, to the extent that this was a claim that the Tribunal's findings in this regard were not open to it, I have already dealt with this above. It is clear that it was open to the Tribunal to make the findings that it did in relation to credibility and it gave reasons for these findings. This complaint also is not made out.

8. The applicant's submissions also appear to raise arguments that do not directly go to the grounds of complaint set out in the amended application. These may be derived from paragraph 5 of the applicant’s written submissions and may be summarised as:

   1)A complaint about a relocation finding on the part of Tribunal.

   2)A breach of s.424A(1) of the Act.

   3)That the Tribunal did not properly address, and failed to consider, whether there was any truth about the persecution suffered by the applicant and that this amounted to a clear avoidance of “the issue” by the Tribunal.

   I note the respondent’s submissions at paragraph 22 in relation to the applicant's submissions in this regard, and agree with the respondents submissions:

   1)The issue of relocation was not relevant in this case as the Tribunal clearly rejected the applicant's claims of a well founded fear of persecution in any part of India. The question of relocation simply does not arise.

   2)The Tribunal was not required to raise with the applicant that it had doubts as to his credibility pursuant to s.424A(1) of the Act. Clearly the word “information” in s.424A(1) of the Act does not encompass the Tribunal's subjective appraisals and thought processes. As the respondent submits, it does not extend to the identification of doubts, defects, lack of details or specificity in the evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference is reference to those gaps (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 and WAGP of 2002 [2002] 124 FCR 276). In any event, the Tribunal’s decision record of the hearing it conducted with the applicant (CB 76), and as supported by the Transcript of the hearing before the Tribunal put forward by the applicant himself, shows that the Tribunal did put its credibility concerns to the applicant.

   a)For example the Tribunal records in its decision record at CB 76.4:

   “It was put to the applicant that it was hard to believe that he was being continually hunted by police if they continually alleged freed him from arrest, knew his identity, knew his family's identity, had issued him with a password to leave the country, and had let him leave the country.”

   b)In this regard, page 11 of the Transcript reports in particular the Tribunal's statement to the applicant:

   “You see, you’re giving a very confused picture that you're implying that you’re a person of great notoriety as far as the police are concerned, that you’re very well known, that they managed to chase you even though you were hiding under an assumed name through many states and over 20 years, that they kept doing this even though they had no real evidence against you and yet you escaped them and yet you arranged to leave India and come here without being arrested”

   c)The applicant’s Transcript contains a number of such examples of the Tribunal putting its concerns about the credibility of the applicant's claims. Another example being at page 12 of the Transcript where the Tribunal is reported as saying:

   “I find it strange that the police would spend so much time chasing a person who is obviously innocent as you say you  are and so obviously unconnected with violence that they would bother doing that went actually they had their hands full with chasing real violence by the many groups that do pursue new violence”

   d)But most relevantly, page 21 to page 22 of the applicant’s Transcript reveal that the Tribunal summarised for the applicant the questions and concerns that it had about the evidence that the applicant had given and clearly drew the applicant's attention (at T22.1) that it had to bear in mind the fact that he could have fabricated his claims and fabricated the documentary evidence to support his claims. The applicant was clearly on notice as to the issues that the Tribunal considered relevant, and of the clear possibility that the Tribunal could take a view adverse to the applicant. The applicant was clearly put on notice and given an opportunity to comment.

   3)I feel bound to note at this point the following. In the written submissions to this Court prepared on the applicant's behalf and filed on his behalf by Mr. Jayawardena, it is stated at page 6 of those submissions:

   “The Applicant submit that the Tribunal raised no credibility issue face to face with the Applicant during the oral evidence given at the RRT hearing.”

   This is so manifestly contradicted by the applicant's own “evidence” of the Transcript of the hearing before the Tribunal which the applicant has brought to do this Court, that it moves me to note for the applicant’s representative that it is not helpful to the Court for a legal practitioner to conduct proceedings in this fashion. Nor clearly does it assist the client. Further, while the respondent’s representative objected to my taking into evidence the applicant's affidavit and the attached Transcript of the hearing; ironically this document as set out above did not assist the applicant and seemed to support the Tribunal’s account of what occurred at the hearing with the applicant in material particulars.

   4)The applicant's claims that the Tribunal did not consider whether there was any truth in the applicant’s claim to be persecuted is clearly not made out on the material before me. This is again with reference to the applicant’s Transcript of the hearing conducted by the Tribunal with the applicant.

9. The Tribunal clearly considered all of the applicant's claims as put by the applicant. In part, it relied on independent country information and in part it relied on what the applicant himself said. It made findings which were clearly open to it on the material before it. The applicant's complaint that the Tribunal was not entitled to make a those findings, particularly in the claimed absence of any probative basis, or on the failure to put independent country information to the applicant, is clearly not made out. I can see no jurisdictional error in the Tribunal's decision and on this basis the application is dismissed. 

1. I note also that the respondent’s further pressed in the alternative at the hearing before me, and submitted, that the application should be dismissed on the basis of unwarrantable delay. The Tribunal decision was handed down on 25 September 2001, and the applicant commenced these proceedings three years later. By letter dated 3 September 2001 (CB 68 to CB 69) the Tribunal wrote to the applicant at the latest address provided by the applicant as his postal address, with a copy sent to his then authorised recipient/migration agent at the address provided in the application to the Tribunal for this agent, advising that a decision had been made in his case, and that it would be handed down on 25 September 2001. It invited the applicant to attend the handing down and further advised the applicant that if he or his authorised recipient/ migration agent did not attend, that a copy of the decision would be sent to him by post. The Tribunal subsequently wrote to the applicant at the address provided by the applicant with a copy sent to his migration adviser on 25 September 2001 (CB 70), and enclosed a copy of the decision (prepared pursuant to s.430(1)) relating to his application. In this regard, the Tribunal complied with its obligations pursuant to ss.430A, 430B, 441A, and in particular 441C(4), the applicant was taken to have received this document seven working days after the date of the document. The date of the letter is the same as the date of the handing down and the applicant therefore was given the letter within 14 days after the decision was handed down (s.430(1)). In these circumstances, the applicant is taken to have received this document in early October 2001. I note this in particular as the applicant asserts in his originating application to this Court that he was notified of the decision which is the subject of the application to the Court, on 25 October 2004. In any event, the application to this Court was not made for at least three years from the date on which the applicant would be taken to have received the document, being the letter with the enclosed decision record, sent to him by the Tribunal.

2. On the issue of unwarrantable delay, it is clear that the relief sought by the applicant is discretionary. He requests that the Tribunal’s decision be set aside, and presumably returned to the Tribunal for reconsideration. I note Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 where the High Court confirmed that the constitutional writ of prohibition is discretionary, and held that prohibition and mandamus should issue in that case. Clearly delay is a discretionary criterion for the denial of the relief sought by the applicant, that of certiorari and prohibition. (Also, unreasonable delay may be sufficient to justify discretionary refusal of mandamus: see Aronson and others: ‘Judicial Review of Administrative Action’ Third edition Thomson 2000 Law Book Co. 2004 at page 736 to 737). This application may be dismissed on the grounds of unwarrantable delay and this could be done without deciding the merits of the applicant's alleged grounds of review. R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 at 570 per Barwick CJ Gibbs, Stephen, Mason and Aickin JJ. It is well accepted that relief under s.75(v) of the Australian Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1. I also note McHugh J. in the recent High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 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…”

3. At the hearing before me, it was only when the issue of unwarrantable delay was raised, that Mr. Jayawardena indicated that he would like to call the applicant to give evidence which would go to explain the reason for the extended period of delay between the notification of the Tribunal’s decision and the filing of the application in this Court. I indicated to Mr. Jayawardena that he had provided no notice to the respondents that he was intending to call the applicant, to which Mr. Jayawardena stated that he was not “informed” that the respondents were taking issue with the delay. I further pointed out to Mr. Jayawardena that the issue of delay arises clearly from the facts of the case given the extended period in question. Mr. Jayawardena submitted from the Bar Table that the applicant’s reason for delay related to an attempt to secure Ministerial intervention pursuant to s.417 of the Act. I explained to Mr. Jayawardena that if he was intending to call his client to give evidence to this effect, that there was clear authority that a request pursuant to s.417 of the Act did not amount to a satisfactory reason for the explanation of delay in such circumstances.

4. In relation to unwarrantable delay I refer to The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. I note that a delay of more than one year, (and in this case the period relied on was three years), could ordinarily lead to relief being refused in the exercise of the Court's discretion: Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at 495 to 496. In relation specifically to delay and s.417 I also note Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 per Goldberg J at [14] to [15]:

   [14] Over nine months elapsed between the order dismissing the application for review in the Federal Court and the filing of the application in the High Court. The High Court application was made prior to the handing down of the decision in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. During that intervening period, on 14 July 2000 the letter had been written to the Minister requesting him to exercise his power under s 417 of the Act. 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. Indeed in his affidavit filed in the High Court, the applicant, after referring to the order of dismissal of his application for review in the Federal Court, said:

   "I was left with the only avenue of requesting the ... [Minister] to exercise his power under s.417."

   
   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: Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576; Re Batuwantudawa [2003] FCA 684; Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 823; Applicant M29 of 2001 v Minister  for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266; Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [16]-[20]. For reasons to which I shall refer later, I am also satisfied that the substantive ground sought to be made out by the applicant as being the error of law made by the Tribunal cannot be sustained.

   [15] Adopting the observation of McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra) I do not consider that there are any or sufficient exceptional circumstances which warrant allowing the extension of time. The basic submission propounded by the applicant as to the reason for the delay was his decision to seek a more favourable outcome from the Minister on humanitarian grounds, pursuant to s 417 of the Act. The applicant submitted that he acted reasonably in the circumstances in attempting to obtain a more favourable decision. However, I do not consider that the pursuit of such a decision constitutes a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the Tribunal’s decision was not to be the subject of challenge.

5. Mr. Jayawardena submitted that if he had been on notice of the issue of delay that “he would have done some research on the legal aspects”. In these circumstances, and despite what I have set out above, I gave Mr. Jayawardena a further week at the conclusion of the hearing to file any further submissions on this issue, which he accepted. On 9 November 2005 further submissions were filed. It appears that these submissions were not served on the respondent until 15 November 2005 when Mr. Jayawardena sent the respondents solicitors a copy by facsimile. In these circumstances the respondent Minister objected to the submission on the basis of the late service. I acknowledge that the submissions were not filed on the respondents within the period that I had provided to Mr. Jayawardena for this purpose, but nevertheless I considered these submissions. In any event, nothing in those submissions justifies, or satisfactorily explains the delay of over three years in bringing the Tribunal’s decision before this Court.  In essence these submissions state:

   1)That at the time the Tribunal decision was handed down the applicant made a “s.417” request for Ministerial intervention.

   2)The response from the Minister was not received until March 2003, nearly 1 ½ years later.

   3)As a result “the applicant did not obtain legal advice for proceeding to apply for an ‘extension of time’ to lodge a judicial review” application.

   4)In October 2004 the applicant “had come to know about the Full High Court decision in S157 of 2002 where the High Court pronounced that in immigration cases, there is no ‘time limit’ for appeal, if the applicant could establish that there was ‘jurisdictional error’ apparent in the Tribunal decision”. On that basis the applicant filed his application to the Court.

   5)Finally, that Mr. Jayawardena noted that the Court’s registry accepted this application “without raising any objection at all”.

6. I do not accept that this amounts to a reasonable excuse for the delay. There is clear authority as set out above that the pursuit of “s.417 intervention” is not an acceptable excuse for delay. Further, that the issue of unwarrantable delay is distinct from the situation considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. In that case the Court was concerned with s.474 and s.486A of the Act and whether these sections were invalid in respect of a proposed application by the plaintiff in that matter or relief under s.75(v) of the Constitution. Further, I fail to see the relevance of whether the Court’s Registry accepted this application or not. In these circumstances, although given the way the hearing progressed I heard the substantive claims of the applicant in any event, I note that had that not been the case I would have dismissed the application on the basis of unwarrantable delay without reference to the grounds in the application. But in any event the application is dismissed on the basis that I can see no jurisdictional error in the Tribunal’s decision.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  13 December 2005