SZERW v Minister for Immigration - [2005] FMCA 1728

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERW v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1728

MIGRATION – RRT decision – Lebanese detained and mistreated by Syrian security authorities in course of criminal investigation – Tribunal found no Convention reason – no error in reasoning – lost recording of hearing – no procedural error established – six year delay in seeking judicial review – relief refused under discretion.

Migration Act 1958 (Cth), ss.418(3), 422B, 424A, 430, 430(3)(b), 474(1), 477(1A), 483A, Pt.8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 8(2)(b)

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Applicant P40/2003 v Refugee Review Tribunal [2004] FCA 936
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Oldfield v Secretary, Department of Primary Industry(1988) 78 ALR 718
Paramananthan v Minister for Immigration & Multicultural Affairs(1998) 160 ALR 24
Perampalam v Minister for Immigration & Multicultural Affairs(1999) 55 ALD 431
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZELA v Minister for Immigration & Anor [2005] FMCA 1068

Applicant:

SZERW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3331 of 2004

Judgment of:

Smith FM

Hearing date:

17 November 2005

Delivered at:

Sydney

Delivered on:

16 December 2005

REPRESENTATION

Counsel for the Applicant:

Mr S Hegedus

Counsel for the First Respondent:

Ms S Mason

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal is included as second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3331 of 2004

SZERW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks judicial review remedies in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 June 1998 and posted to the applicant on 23 June 1998. The Tribunal affirmed a decision of a delegate made on 3 July 1997 which refused to grant a protection visa to the applicant, on his application made on 25 February 1997.
The present application is the applicant’s first attempt to obtain judicial review and was commenced on 12 November 2004, more than six years after the applicant received notice of the Tribunal’s decision. The delay supports a contention made by the Minister that I should exercise my discretion to refuse to grant relief, even if a ground for review were made out, and I shall address this issue further below.
Although the Tribunal’s decision was made before the commencement of the present “privative clause” provisions in Part 8 of the Migration Act, the present application is subject to those provisions (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b)). The consequence is that relief would be barred under ss.474(1) and 477(1A) unless I am satisfied that the Tribunal’s decision is not a “privative clause decision” because it is affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476).
The applicant last arrived in Australia on a three month visitor’s visa in December 1996, having previously entered Australia in February 1995. On 25 February 1997 he applied for a protection visa in an application presented by a migration agent. An attached statement described how the applicant had lived as a Sunni Moslem in Tripoli without involvement in Lebanese politics. It claimed that “my life started to change in a serious manner and I became under serious threats” after returning in 1995 from visiting his two brothers in Australia. He said that he encountered two episodes of arrest and mistreatment by Syrian security forces. The first occurred in August 1995, when he was held for four days on suspicion of being a wanted “escapee from Syria”. It ended when “the Officer apologized for what happened and I was released”.
The second incident involved a detention for three months:
I continued in my work as usual until December 1995 when I met by mere coincident with an old colleague and friend whose name was K. during my work in Beirut. In fact our relations were very strong and close during our youth time. When I asked about what he was doing now he told me that he is escaping from the Syrians as he joined many operations against them with the Lebanese Forces and they are searching for him. When I heard that I was really scared and afraid and told my said friend my experience with the Syrians when they arrested and beat and mistreated me just because they doubted that my name is like the name of one of their suspects escapees. I gave him my work address in Beirut, but in fact I don’t know why I gave my address without thinking of any complications that may happen. He then left me.
After about 2 weeks he came to me at my work place and asked me to find him a refuge at my house in Tripoli as the Syrians are about to find him. I refused saying that the place where I live in Tripoli is very small and crowded with my wife and 2 children. He left me quickly while he was seriously disturbed. After about half an hour a Force from the Lebanese Army came to my work place and arrested me and took me to one of its Centres in East Beirut. Since my detention with the Lebanese Army I was not even questioned. I was regularly given 2 meals daily and I did not feel any troubles. But I expected that such detention was in relation to my old friend K. whom I felt that he was being chased by some people when he came to me at my place of work. I was kept at the Lebanese Security Centre for about more than 2 weeks. In the middle of January 96 a Syrian Force came and took me to Tripoli and was detained in their same Centre that I was detained in the first time. They immediately started their investigation and asked me about my relations with my friend K. whom I met by mere coincident in East Beirut. I answered them truthfully about all my old relations with him since school time where his family was living in Tripoli. I also told them what he told me that he was involved in acts against the Syrian Forces and that he is now an escapee and being chased. I also told them about his second approach to me at my place of work and his request to find him a refuge at my house in Tripoli and my refusal to his request. In fact they were not convinced with what I told them and started a persecution campaign against me beating and insulting me. I stayed in their detention for more than 3 months until at last they were convinced that I was innocent and have no relation with that friend named K. They released me about the middle of April 96 after they succeeded in destroying my dignity and humanity the thing which made me feel depressed with no hope in life it self.
A delegate considered that the applicant’s fear of persecution if he returned was not well‑founded, and refused the application on 3 July 1997. The applicant’s agent then lodged an application for review by the Tribunal on 25 July 1997. In a written submission, the applicant explained his claims further:
2.… Such brutal behaviour indicate that the Syrians are not in the mode of respecting my human rights nor they are in the mode of making a fair investigation. They are just committing such brutal and savage acts depending upon their armed force against the Citizens of Lebanon like any other occupying foreign Forces.
3.Again when they were monitoring another suspect, who came to me asking for amnesty, they also against arrested me and subjected me to more brutal and savage treatment. But this time they used the Lebanese Army to detain me and after some time I was again transferred to the Syrian Occupying Forces in Tripoli. But they again repeated their brutal campaign of persecution against me. I was kept with the Lebanese Army when I was transferred to the Syrians on the middle of January 96 and was kept there under their continuous brutal persecution until they released me in April 1996 i.e. I was detained by them for about 3months.
Regrettably all such torture and persecution was not given its proper weight by the Case Officer and hence he did not consider that such brutal acts are persecution. I do not know in fact any other name for such acts which neglect deliberately to respect all human rights. They detained me without any warrant and I was not charged with any offence and I was brought before any judicial body.
The applicant attended a hearing before the Tribunal on 25 May 1998, and was accompanied by his agent who made oral submissions. As will appear below, the current absence of a tape or transcript of the hearing presents a significant difficulty for the applicant. The Tribunal summarised some of the hearing, but I am unable to be satisfied that its description is complete. It included a description by the applicant of his second period of detention:
The second detention occurred after the applicant had contact with a man who he had known many years before. This man came to see the applicant again and he wanted to hide at the applicant’s home. The applicant refused to shelter the man, and then the man left in a hurry. After two hours, the Lebanese army came and took him from his workplace in Beirut. After a month, the Syrians came and took him to his home town. The applicant was questioned about his association with the man. He replied that he knew him at school and that he used to work against the Syrians.
There were 83 people in one room in the gaol, and beatings started. The Syrians asked the applicant how he knew this man, and the nature of his connection with him. The applicant responded that he used to be with him at school, and that he had refused shelter to him when he sought it. The applicant said that as he was arrested soon after the man spoke with him, he must have been under surveillance. The applicant said that this man was later caught. When the Tribunal sought further details, he responded that he did not know the details and that he found out about it only after he came to Australia.
The applicant was detained for more than three months. He was not charged, but was detained and asked questions about his activities. They asked whether he knew what happened. If he responded in the negative, he would be beaten. They eventually released him when the “truth” came out that he did not know any of these difficulties.
The applicant was asked whether he had any difficulties after his release. He responded that he was beaten a few months later on his doorstep. The doctors in his home town refused to treat him, and he went to Beirut. He sustained an injury to his face. He decided when he was attacked on his doorstep that he was leaving the country. He applied for a visa. The applicant’s wife wanted to stay with her parents and said that one of the children might be hurt because of him. The Tribunal inquired as to how this incident was linked to one of the Convention reasons. The applicant said that the people who attacked him were waiting for him, and that he almost lost his eye. He said that he did not know the identity of his assailants nor why he was attacked.
The applicant said that he feared harm from the Syrians and the people who beat him. He is scared of being arrested and hit and of many other things.
The Tribunal referred to having “put to the applicant” two areas of country information: the difficulty of evading Syrian and Lebanese security controls at the airport; and “that the Syrians do not attempt micro‑control and are quite tolerant of dissent to their presence”. It did not refer to having discussed with the applicant any background information concerning the “operations” of the “Lebanese Forces” for which the applicant’s “old colleague and friend” might have been sought.
The Tribunal does refer to such information under the heading “Independent Evidence”, after referring to extensive other background information concerning the security situation in Lebanon and the Syrian presence. It identified the “Lebanese Forces” (referred to as “LF”) as “the largest Christian militia engaged in fighting in the Lebanese civil war”, and referred to its (then) recent activities:
In 1994, the LF was the subject of a major investigation in relation to the commission of a number of criminal offences, including the bombing of the Zouk church north of Beirut and two political assassinations. Following the implication of Samir Geagea in the church bombing in February 1994, the LF was deregistered as a political party: DFAT, Cable BI3589, 15 October 1997. In March 1994 the offices of the Party were raided, the senior leadership of the LF was placed under arrest, and the organisation was banned. The evidence suggests that those then arrested were mostly senior leaders of the LF, those closely associated with Geagea, and members of its intelligence unit: see for example, “Lebanon: Arrest of 24 Lebanese Forces Members Ordered”, Reuters Business Briefing, 22 April 1994.
The government detained large numbers of LF members and engaged in low‑level harassment of others:
“In 1994/95 there were credible reports that the military/security forces practised arbitrary arrest, principally against the Lebanese Forces. This was initially associated with the Zouk church bombing. In most cases those detained were released after two or three days. At the same time there were reports of low‑level harassment (road blocks, car searches and ID checks) of LF supporters by the military/security forces, principally in the LF heartland around Becharre.” (Cable BI3589, 15 October 1997).
Senior leaders were subsequently tried in relation to the offences: see United States Department of State, “Lebanon”, Country Reports on Human Rights Practices for 1994, United States Department of State, “Lebanon”, Country Reports on Human Rights Practices for 1995; DFAT cable DM43695 of 26 December 1994; Human Rights Watch, World Report 1995 at 295. The United States Department of State and Amnesty International Annual Reports for 1995 and 1996 reported continuing sporadic arrests of LF members, the former noting three specific incidents following which numbers of LF supporters were arrested.
In response to an inquiry as to whether Lebanese authorities are still pursuing former LF members, the Department of Foreign Affairs and Trade points out that there are many thousands of former members of the LF, and that the rank and file of the organisation are not being pursued by the authorities:
“Following the subsequent trial and conviction of Geagea, Lebanese Armed Forces’ interest in the LF has waned. The current situation is that thousands of former LF members and their families (a not inconsiderable number of whom are in the Lebanese Armed Forces) carry on their lives unhindered by the military/security forces …
As the church bombing receded so too did the military security forces’ interest in the LF. We understand that the military/security forces are now concentrating their energies only on those members of the LF wanted for serious crimes (eg murder or bombings). The rank and file (numbering many thousands are to the best of our knowledge allowed to carry on their lives unhindered – anecdotal evidence indicates that low level harassment has ceased.” (Cable BI3589, 15 October 1997).
It appears that the authorities are only interested in those wanted in connection with serious offences:
“To the best of our knowledge, they are pursuing certain former Lebanese Forces (LF) members only, viz. those wanted in connection with serious offences, such as murders or bombings. They are not/not (sic) pursuing the rank‑and‑file. (Cable BI2291, 27 November 1996; see also Cable BI 3589, 15 October 1997).
There are, after all, thousands of former LF members living in Lebanon, many of whom are in the Lebanese Armed Forces, and whose families are perfectly free to travel.” (Cable BI2291, 27 November 1996).
Under the heading “Findings and Reasons”, the Tribunal identified the applicant’s Convention claim as being fear of “persecution from the Syrian authorities for reasons of political opinion”. In relation to the first incident, it accepted that the applicant had been detained for four days after he “experienced difficulties at a checkpoint”. However, it considered that this was “not linked to the applicant’s socio‑political status”, and that the Syrian interest in him was “largely opportunistic, and is not for a Convention reason”. No challenge is now made to this part of the Tribunal’s reasoning, nor to other parts where it addressed elements in his history other than the second incident.
The Tribunal’s reasoning about the second incident was (numbering added):
1.The applicant claims that he was detained on a second occasion in 1995 after a former school friend came to his workplace and sought refuge in his house. The applicant was initially detained by the Lebanese authorities for a month, and then for three months by the Syrian authorities, during which time he was questioned about his relations with that friend. He was, on his own evidence, detained “until at last they were convinced that I was innocent and have no relation with that friend”. The Tribunal has some doubts about the plausibility of the applicant’s claim that he was detained for such an extensive period of time without charge. However, the Tribunal accepts that there is a core of truth to his account of events, although he may have exaggerated the length of his detention. The applicant claims he was mistreated and tortured during that detention. The Tribunal accepts these claims. The issue once again arises as to whether this incident was Convention related. The school friend of the applicant was wanted by the authorities, and the applicant claimed in his initial written application that this man had been involved in operations against the Syrians with the Lebanese Forces, and that the man must have been under surveillance. When questioned at hearing about this man’s association with the Lebanese Forces, the applicant stated that he did not know anything about this man and his activities, as he had not known him since school.
2.The Tribunal finds that the applicant was detained because of his potential importance in a criminal investigation of his former acquaintance, not because of his political opinion or a political opinion imputed to him or any other Convention reason. The Tribunal does not accept that the applicant, a Sunni Muslim, faced an extensive detention as he was imputed to be sympathetic to the Lebanese Forces, the party of the Maronite Christians during the civil war (and an illegal organisation at the time of his detention). The applicant was not questioned about any involvement with the Lebanese Forces, and the issues about which he was questioned relate to his knowledge of his friend’s movements and activities. In any event, there is no evidence of systematic persecution of LF members – the independent evidence suggests that “the current situation is that thousands of former LF members and their families … carry on their lives unhindered by the military/security forces”, and that arrests of LF members seem to be related only to serious offences: DFAT, Cable BI2291, 27 November 1997; Cable BI3589, 15 October 1997. The Tribunal finds that the applicant’s former school friend was wanted in relation to serious criminal offences, and this is the reason why the applicant was detained and questioned.
3.The Tribunal also does not accept that the applicant was detained for opposing the Syrian presence. On the applicant’s own evidence, he has not been politically active. In his initial application, he stated that he “had no political activity or hostility with the Syrians”. At hearing, he said that he was not involved in any political activity although he spoke among his friends against the Syrian occupation. The independent evidence indicates that the majority of Lebanese citizens are opposed to Syria’s presence. Advice from the Department of Foreign Affairs and Trade (DFAT) suggests that “Syria does not attempt micro‑control, and does not greatly care that opposition politicians and whole districts seethe with loudly voiced anti‑Syrian sentiment”. The evidence suggests that the Syrians would be “most unlikely” to pursue “low‑level offenders” and that low‑level anti‑Syrian activists have not been systematically pursued. When the Tribunal put this material to the applicant, he responded that the Syrians do care, and that they have silenced political dissent. The Tribunal does not accept the applicant’s assertions. DFAT’s advice suggests that a considerable level of anti‑Syrian and anti‑government opposition is accepted without consequence.
4.Although the Tribunal accepts the applicant’s claims about the treatment that he received in custody at the hands of the Syrians, this does not bring him within the ambit of the Convention. Certainly, the independent evidence before the Tribunal and the evidence tendered by the applicant demonstrate that human rights conditions in Lebanon fall short of internationally accepted standards, despite the substantial restoration of order and a vast improvement in the human rights situation since the anarchy of the civil war years. Specifically, there is evidence of human rights abuses perpetrated by the Syrian forces. However, generalised failure to adhere to basic standards of human rights would not entitle a person to refugee status on that basis alone: see, for instance, Yan Xu & Anor v MIMA & Anor (unreported, Federal Court of Australia, Olney J, 18 April 1997, p16). General evidence of human rights abuses in a particular country does not support a claim to refugee status unless an individual applicant can satisfy the Tribunal that there is a real chance that he or she would be subjected, for a Convention reason, to harm amounting to persecution.

Counsel for the applicant argued two grounds in a “further amended application” which were directed at the Tribunal’s findings in these paragraphs. He addressed the second ground first, and I shall do likewise.

Ground 2: “identifying wrong issues and asking itself wrong questions”.

The particulars pleaded for this ground were that:
a)The Tribunal failed to consider “the ‘political’ nature of the imputed ‘criminal’ activity”.
b)The Tribunal failed to consider “whether the Syrian authorities had a legitimate object in investigating criminal activities in Lebanon and, if not, whether such investigations were motivated by Convention based reasons”.
In relation to particular (a), Counsel’s written and oral submissions contended that the Tribunal failed to appreciate that the applicant’s detention was divided into two periods: the first when he was held by the Lebanese authorities, and the second after he passed into the hands of the Syrian authorities. He argued that the Tribunal “made no positive finding as to the reason for the applicant’s detention by the Syrian authorities”, and failed “to examine the separate question of why the applicant was detained by Syrian authorities”. He argued that, if the Tribunal had done this, it would (and should) have appreciated that the applicant’s detention by the Syrian authorities had a “political” flavour or reason due to the applicant being perceived to be a sympathiser for the LF or an opponent of Syria’s presence in Lebanon.
However, I am not persuaded that the Tribunal failed to appreciate that the applicant raised these Convention claims, nor that it failed to consider them.
It is clear that the Tribunal was fully alive to the history of the applicant being taken into detention by Lebanese authorities before being delivered into the hands of the Syrian authorities. It refers to this history at the start of its reasoning in paragraph 1 extracted above at [11]. I do not consider that its subsequent addressing of both detentions as sharing a common character revealed any misunderstanding of the applicant’s claims. The applicant himself had presented the incident as a single episode in which the Lebanese and Syrian security authorities were acting in concert to trace a particular LF suspect. In my opinion, it is clear that the Tribunal’s critical findings which excluded Convention reasons for the detention squarely addressed the detention and accompanying mistreatment performed by the Syrian security authorities.
I also consider that the Tribunal identified, and rejected, the claim that there was a political reason for the applicant’s detention by the Syrian authorities, including that he was perceived to be an LF sympathiser or opponent of the Syrian presence. It made clear findings that:
the applicant was detained because of his potential importance in a criminal investigation of his former acquaintance, not because of his political opinion or a political opinion imputed to him or any other Convention reason. …
the applicant’s former school friend was wanted in relation to serious criminal offences, and this is the reason why the applicant was detained and questioned. …
the applicant was [not] detained for opposing the Syrian presence.
I consider that the Tribunal’s reasoning which included these findings fully addressed the Convention claims raised by the applicant, and I reject the submission that jurisdictional error occurred of the type identified in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [48]‑[51], [55] and [63].
In relation to particular (b), counsel for the applicant referred to the discussion of McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”) at 258‑259 as discussed and applied by Wilcox J in Paramananthan v Minister for Immigration & Multicultural Affairs(1998) 160 ALR 24 (“Paramananthan”) at 34 (and applied by Burchett and Lee JJ in Perampalam v Minister for Immigration & Multicultural Affairs(1999) 55 ALD 431 at 435). These cases point out that it is possible for someone’s suffering in the course of a criminal investigation to be characterised as having a Convention reason, where, for example, the criminal laws are being applied upon discriminatory grounds or for “political” objects. Counsel characterised such situations of criminal enforcement as lacking “legitimate object”, adopting McHugh J’s phrase in Applicant A (supra). He contended that the applicant in the present case claimed that the Syrian authorities lacked a “legitimate object” in their detention of the applicant, and that the Tribunal had failed to address this issue. He argued that the Tribunal “should have entered upon the questions whether there was a causal connection between the cruelty the applicant had suffered” in detention and his actual or perceived political opposition to the Syrian presence in Lebanon, invoking the language of Wilcox J in Paramananthan (supra).
However, I am not persuaded by these arguments that there was any issue which the Tribunal was required to address and omitted to do so. As I have indicated above, the Tribunal found that the Syrian authorities were acting in concert with the Lebanese authorities in conducting a criminal investigation into “serious criminal offences” and that there was no Convention reason for their treatment of the applicant. There was country information which allowed the Tribunal to reach this view, and counsel for the applicant did not contend otherwise. This included information that the Syrian presence in Lebanon and its support of Lebanese security authorities was “legitimate” even if unpopular. It included information that recent LF “operations” included terrorist bombings and assassinations, calling for drastic security measures. I consider that its findings have a sufficient factual basis for its characterisation of the applicant’s detention as lacking any Convention reason. I am not persuaded that the Tribunal’s failure to provide further discussion of the “legitimacy” of the Syrian involvement in the criminal investigations revealed a failure on its part amounting to, or evidencing, jurisdictional error.
I therefore consider that the arguments made under ground 2 do not succeed.

Ground 1: failure to follow procedure or accord procedural fairness.

The further amended application gives two particulars:
(a)The Tribunal failed to make, or failed to retain, an audio transcript or audio tape of the purported hearing, heard on 25 May 1998.
(b)The Tribunal failed to put to the applicant the Tribunal’s view, and the information upon which it was based, that the applicant’s friend was wanted by the authorities because of his involvement in criminal offences.
It was common ground that the Tribunal was unable to locate a recording of the hearing held on 25 May 1998, when requested for a copy by the applicant in February 2005. However, this does not prove that no record was made, nor that a recording was not kept for a reasonable period. In my opinion, the applicant’s delay in making the request must provide the clearest answer to the complaint of procedural unfairness.
Moreover, counsel for the applicant could not point to any statutory provision raising a relevant duty on the Tribunal to record or keep records of its hearings. In the context of an administrative tribunal, there is authority which suggests that there could be no denial of natural justice in the absence of such a positive duty (see Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 at 721‑722).
Counsel also developed an argument that the Tribunal’s failure to produce a recording revealed a failure of its duty under s.430(3)(b). This requires it to “give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based” when preparing its written statement of reasons. Counsel argued that a taped hearing would be a “document” within this provision. I need not explore this contention, since in my opinion even if it were correct, and even if a failure of this duty were established on the evidence before me, it could not support the relief sought in the present application.
The situation would be analogous to a failure on the Secretary’s part to forward documents to the Tribunal under s.418(3), which has been held not to vitiate its decision (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 at [21], [42]‑[48], [56], [179]‑[180], [250]‑[251], [318] and [326] (c.f. Kirby J at [219] and [225]; also Applicant P40/2003 v Refugee Review Tribunal [2004] FCA 936 at [35]‑[36]). Similarly, the Tribunal’s procedures under s.430 are not imposed upon it “in connection” with the making of its decision (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323), and, in my opinion, a failure to follow them would not render its decision invalid.
The applicant’s second particular of a failure of procedural fairness has more substance. This pointed to the use by the Tribunal of country information in DFAT cables BI2291 and BI3589 concerning the investigation of LF members for “serious offences”, which was cited by the Tribunal in its reasoning which I have extracted above (see [11]), and the content of which I have extracted above (see [9]). Counsel for the applicant argued that this was “adverse information that is credible, relevant and significant” which the applicant should have been given an opportunity to respond to (citing authorities recently applied in the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [140]).
Counsel for the Minister argued, as I understood her, that it was not “significant” in relation to the applicant’s claims since it related to the characterisation of the investigation of the applicant’s LF friend and not the investigation of the applicant. However, background information on LF operations was very relevant to the significant issue, upon which the Tribunal’s decision ultimately turned, concerning the characterisation of the reasons for the applicant’s detention. The background provided by the DFAT cables was, in my opinion, plainly “credible” and was also “relevant and significant”. At the time that the Tribunal reached its decision the current provisions of ss.422B and 424A were not in operation, and “common law” procedural fairness would have required the applicant to be given an adequate opportunity to deal with any information which he could not have reasonably anticipated would be used (see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [26], [89], [125]‑[126], [140] and [147], and Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [16]-[17]).
My difficulty with the applicant’s argument, is that I am not persuaded that he was denied this opportunity. The applicant’s own claims implicitly assumed a background knowledge by the Tribunal of what were LF “operations” which would have led to the surveillance and pursuit of his friend, or implicitly invited it to acquire that knowledge for itself. I am therefore not persuaded that the information in the DFAT cables had any element of “surprise” which would have required their contents to be put to the applicant.
Moreover, I am not persuaded that the background to LF operations was not sufficiently canvassed with the applicant in the course of the hearing. In the absence of a transcript, I am not prepared to draw this inference merely from the absence in the Tribunal’s reasons of reference to these cables being “put” to the applicant.
The applicant sought to deal with this difficulty, by presenting an affidavit sworn on the morning of the hearing which stated only:
During that hearing, the Tribunal Member, Saku Akmeemana, did at no time ask me whether I thought the activities of my friend, K., were criminal in nature. Nor did the Tribunal Member tell me that she believed this to be the case.
Counsel for the Minister chose not to cross‑examine the applicant on this statement, and I must therefore accept that his memory was sufficient after seven years to be able to give this evidence. However, I accept counsel for the Minister’s submissions that this evidence does not exclude the possibility that the applicant was sufficiently told during the hearing of the information in the DFAT cables, or its gist, and was given an opportunity to comment upon it in the context of the claimed history of the applicant’s friend. Procedural fairness would not have required that the Tribunal member enquire as to the applicant’s beliefs about this, nor that he or she should foreshadow how the information would ultimately be applied.
For the above reasons, I consider that ground 1 must also fail. I therefore find that the Tribunal’s decision was a privative clause decision for which relief is barred under ss.474(1) and 477(1A).
Even if I were wrong, I would have refused relief in the exercise of my discretion. The discretion was recently described by McHugh J in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80]:
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 (and c.f. Hayne J at [211] with whom Kirby J agreed at [174]‑[176]).
In the present case, the applicant and his partner have filed affidavits which seek to explain a very long period of delay. The applicant said:
1.On 24 July 1997, I applied to the Refugee Review Tribunal (“the Tribunal”) for review of a decision refusing me a protection visa. On 22 June 1998 that application was refused.
2.I had at that time, or some time prior to that, been approved for a one year work visa. I could not find work for seven months. I then worked for five months until my work visa ran out. After that point I depended on the benevolence of friends for all of my living and other expenses.
3.I spoke to an immigration lawyer, Mr Adrian Joel, about appealing my case. He quoted me $11 000.00 to do the work.
4.I spoke to two other lawyers. They both quoted me over $3000.00. I simply did not have that kind of money.
5.I believed that I needed a paid lawyer to file an appeal against the Tribunal. I did not know that I could do it myself.
6.I do not speak or understand English very well. My friend Michel Tabet has assisted me to understand this affidavit. I was often confused by court procedures and immigration procedures and legal procedures.
7.I married an Australian woman, Corrinda King, in December 1998. She has two children. She was badly drug dependant when I met her. I spent a lot of time trying to help her, and trying to keep her off the streets. These were very stressful times. This contributed to me not being organised or financially able enough to properly investigate my appeal rights against the Tribunal.
I have sympathy for the applicant, and can understand his difficulties. I have also given weight to the need in refugee matters to take into account the special difficulties facing claimants, the confusing jurisdictional history of judicial review of immigration decisions, and Australia’s international obligations (c.f. my discussion in SZELA v Minister for Immigration & Anor [2005] FMCA 1068 at [55]‑[65]).
However, in the present case, the applicant’s affidavit does not adequately explain his delay. It reveals that he was aware of rights of appeal by way of judicial review, and elected not to pursue them for many years. He has not explained how, after six years, he decided to commence litigation in person and found counsel to argue his case. While accepting that his life over that period has been difficult, I consider that this is a clear case where I should give overriding weight to the considerations referred to by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495‑496. I consider that the delay has been “unwarranted” and that relief should be refused for that reason.
The parties have agreed upon a costs order.

I certify that the preceding thirty‑eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 December 2005