SZGBV v Minister for Immigration

[2006] FMCA 1517

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGBV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1517

MIGRATION – Refugee – impermissible merits review – Tribunal complied with s.424A – applicant received proper notice of hearing – no general obligation on a Tribunal to make enquiries – there is no obligation on the Tribunal to make out the applicant’s case – the Court can only proceed on the evidence before it – findings of fact including findings on credibility are a matter for the Tribunal – unwarrantable delay – application dismissed.

Migration Act 1958, ss.36(2), 65, 422B, 424A(1), 424(3)(a), 424(3)(b), 474, 477(1A), 477(2)

Ngu v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 21
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
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
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24

Applicant: SZGBV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 925 of 2005

Judgment of: Nicholls FM

Hearing date: 9 October 2006

Date of Last Submission: 25 September 2006

Delivered at: Sydney

Delivered on: 16 October 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. S. Free

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 925 of 2005

SZGBV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 14 April 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 October 2002 affirming the decision of a delegate of the respondent Minister made on 18 October 2001 to refuse a protection visa to the applicant.

2. The applicant is a citizen of India who arrived in Australia on 4 May 2001. On 4 June 2001 he lodged an application for a protection visa with the first respondent’s Department. The applicant’s claims for protection can be found in the application for a protection visa (Court Book (“CB”) 1 to CB 23, and particularly in an attached statement at CB 26 to CB 27), in his application for review (CB 52 to CB 55) and also in written submissions sent to the Tribunal by the applicant’s migration agent on 8 September 2002 (CB 61 to CB 66 – the letter has also been signed by the applicant). The Tribunal’s account of the applicant’s claims is reproduced in its decision record at CB 73.6 to CB 75.1.

3. The essence of the applicant’s claim was that, since 1989, he had been harassed by police in India, because his brothers belonged to the Sikh terrorist group “Babbar Khalsa”. He claimed that he had been imprisoned for three days, interrogated and mistreated and then released after paying a bribe. He claimed that he was then “taken under the wing of the moderate Sikh party, Akali Dal”. He claimed that in 1993 the police “sought him for information” about his brothers and Akali Dal, and had tortured his parents. He claimed that the police arrested and tortured him again six months later even though he was no longer part of the Babbar Khalsa group. Further, the applicant claimed that after having been in hiding and moving from place to place, he left India using a disguise.

4. The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 79.1 to CB 83.1. The Tribunal found:

   1)It accepted the applicant’s claims that his family suffered harm in Punjab following the Sikh uprising in the 1980s (CB 79.1).

   2)It accepted that the applicant had been arrested in 1989 and questioned over Babbar Khalsa (CB 79.2).

   3)That the mere fact of interrogating suspect terrorists to gain information about acts of terrorism is not persecution even if such interrogations occur more than once (CB 79.3).

   4)That it was “an eminently reasonable and sensible act”, and not in itself persecution, by the Indian authorities to arrest and interrogate the applicant for three days in 1989 because he had been giving assistance to the Sikh militants (CB 79.5).

   5)It was not satisfied as to the credibility of the applicant’s claim that he had been freed following payment of bribes, as country information indicated that the authorities “take Babbar Khalsa very seriously”. It also found it implausible that the applicant would have been freed unless the police were convinced that he was not a particular source of concern for them (CB 79.9).

   6)It accepted that the applicant had joined the moderate Sikh party, Akali Dal (CB 80.3).

   7)It accepted that around 1993 the police had wanted to question the applicant again about his brothers’ activities in Babbar Khalsa (CB 80.4).

   8)It was not satisfied that the applicant’s parents had been tortured to reveal his whereabouts to police in 1993 or that the applicant had been tortured during questioning, and considered that these claims had been invented to boost his claims (CB 80.6).

   9)It accepted that in 1996 the applicant had been questioned again by the police for news of his brothers, but was not satisfied that this was persecution or that the applicant had been tortured (CB 80.9 to CB 81.1).

   10)It was not satisfied as to the credibility of the applicant’s claim that he had gone into hiding and had been on the run from the Indian authorities since there was no need, on what was before it, to put himself in such a position (CB 81.3).

   11)That the applicant lived “normally” from 1996 until he came to Australia (in May 2001) and that he came here for reasons not connected with the Refugees Convention (CB 81.5).

   12)It was not satisfied that the applicant was pursued by police and left India by “any but normal means” (CB 81.7).

   13)Based on country information available to it, that the applicant would not face persecution in India over the expression of his political opinion, whatever it might be (CB 81.9 to CB 82.1).

   14)It was not satisfied, on the independent evidence before it, that the applicant faced hardship or discrimination in India because of his Sikh ethnicity or religion (CB 82.2).

   In all the Tribunal, while it accepted that the applicant may have suffered some mistreatment in 1989 during an interrogation, was not satisfied that there would be a lack of protection available to him if threatened with such a situation in the future. Further, it was of the view that the questioning to which the applicant had been subjected was not persecutory in motivation or nature. The Tribunal did not find the applicant’s claims of being “on the run” from the police since 1996 as credible. Therefore, the Tribunal was not satisfied that the applicant faced persecution for expression of a pro-Sikh political opinion or because of his ethnicity or religion, for any Convention reason.

   
   

   The Tribunal found that the applicant did not have a well founded fear of persecution.

5. The applicant’s originating application to this Court, filed on 14 April 2005, is un-particularised, formulaic and is in a format and style such that is often seen in this Court. The applicant filed an amended application on 21 June 2005 which is also another (different) formulaic presentation also often seen in the Court:

   “On the following grounds.

   That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.

   Particulars:

   The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on my political opinion. I am against the Sikh militant and the government in India. I was persecuted because of my political opinion With the Sikh party. Because of my political popularity I was persecuted by the government & the authority. I will be persecuted if I return back to India because of my political opinion. It is a Convention base persecution. I have nobody to help me to collect the documentary evidence.

   I was persecuted because of my political popularity. I refer claims CB pages 26-27. It is true I did not collect relevant documentary evidences to prove my persecution. The tribunal member did not consider my adviser submission. I refer CB pages 61-66.

   The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.

   The tribunal did not observe Migration Act 1958 properly to making the decision.

   The Tribunal fail consider my claims with the proper way which the migration Act 1958 provided in my claims.

   I will provide more details in my written submissions to support my judicial review application.

   Particulars

   The Tribunal finding that the totality of the country information does not show that Independent politicians are not persecuted in India.

   I attended the Tribunal hearing because I did not properly informed by the tribunal hearing. The hearing invitation letter did not serve properly to me. I do not speak, read & write English. I agree with my lack of knowledge. And I provide my oral evidence to support my review application. But the Tribunal member did not consider that. Please return my application to the RRT for further consideration.

   Without the proper investigation if the tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgement plaintiff S157 v Commonwealth of Australia (4 February 2002).”

6. I note that the applicant’s application for judicial review was filed in this Court after some delay (the Tribunal’s decision was handed down on 21 November 2002. The application to the Court was made on

   
   

   14 April 2005). Relevantly s.477(1A) of the Migration Act 1958 (“the Act”), as applicable to the present application, imposes a time limit for applications brought in respect of privative clause decisions. The respondent filed a Notice of Objection to Competency, objecting to the jurisdiction to review the Tribunal’s decision, on 22 April 2005.

   
   

   The case of Ngu v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 21, a Full Federal Court decision upheld the Judgment of Justice Nicholson who, at first instance, held that an appeal against a privative clause decision, lodged outside the time limit in s.477(1A) of the Act, is in those circumstances incompetent unless a ground of review can be made out.

   
   

   In determining whether the Tribunal’s decision was infected with jurisdictional error therefore, regard must be had to s.474 of the Act in the way described by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. If the Tribunal’s decision in the case before me is a privative clause decision pursuant to s.474 of the Act then the time limit provided in s.477(1A) of the Act would apply. Also pursuant to s.477(2) (as it applied) of the Act the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is of course 28 days. The issue of whether the decision complained of is a privative clause decision, or not, requires an examination of the grounds of review.

7. At the hearing before me, the applicant appeared unrepresented. I note the applicant was referred to a lawyer on the panel of the Court’s Legal Advice Scheme and in July 2005 was represented by solicitors who no longer act for him. He was assisted by an interpreter in the Punjabi language. The respondents were represented by Mr. S. Free.

8. The applicant stated that his life is at risk in India, and that he does not wish to return to India. His complaint was that the Tribunal did not believe his “story”, even though he claimed he had provided them “proofs” and “evidence” to “prove that the circumstances are worse in India”. Further the applicant stated that the central government in India is ruled by the “same party” that was ruling in 1984 when Prime Minister Indira Ghandi was murdered. He stated that as a result the “Sikhs are still harassed in Punjab”.

9. I explained to the applicant that the task for the Court was to look at matters relevant to his application for judicial review of the Tribunal’s decision. I explained to the applicant the difference between the role of the Tribunal and the role of the Court, and that the Court was concerned with whether particular legal error could be discerned in the Tribunal's decision. I further reminded the applicant that the question that the Tribunal, in effect, had to answer was whether he met the definition of refugee as set out in Article 1A(2) of the Refugees Convention. That if the Tribunal could be satisfied that an applicant has met that definition then it must grant a protection visa (pursuant to ss.65 and 36(2) of the Act). The question of whether an applicant has a well founded fear of persecution is a question for the Tribunal, and not for the Court.

10. With reference to the sole stated ground in the amended application it appears the complaint is that the Tribunal failed to take into account whether the Minister’s delegate had “reasonable grounds” for not granting a protection visa. This does not assist the applicant. For the applicant’s benefit (as explained during the hearing before the Court) a Tribunal is required to perform a “de novo” review of the delegate’s decision. This means that it is required to look at the applicant’s claims afresh. On what is before the Court now, that is what the Tribunal did. There is no onus on the Tribunal, or even on the Minister’s delegate, to “disprove” the applicant’s claims by raising “reasonable grounds” for not granting the protection visa. The task for the (or any) decision maker in relation to a protection visa application (pursuant to ss.65 and 36(2) of the Act) is relevantly to determine whether it can reach a level of satisfaction that Australia has protection obligations towards the applicant, in which case a visa must be granted. If no such level of satisfaction is reached, the visa is not granted. A plain reading of the Tribunal’s decision shows it was alert to the way it needed to approach this task and conducted the review in this fashion. The complaint does not succeed.

11. Particulars 1 and 2 on page 2 of the applicant’s amended application, as Mr. Free submitted on one reading, are seeking merits review.

    
    

    Such review of course is not available to the applicant before the Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).

12. Mr. Free also submitted that on another reading, the applicant can be taken to be complaining that the Tribunal did not consider his claim. Mr. Free submitted that it is well accepted that if a Tribunal fails to deal with a distinct part of a claim for refugee status then that is a jurisdictional error. However, he argued that this did not occur in this case. Further, the respondent submitted that if the applicant is raising a claim that he feared harm because of his political popularity, then that was never put to the Tribunal.

13. The Court was referred to the letter dated 8 September 2006 sent to the Tribunal by the applicant, through his migration agent (see CB 61 to CB 66) which summarises the applicant’s claims. At CB 61:

    “Essence of the applicant claim is that, the authority assumed that applicant to be a supporter of the BABAR Khalsa (a militant organization) merely because his family member i.e. brothers are known members of the Babar Khalsa and advocates of Khalistan. Consequence of that, applicant was arrested, tortured on several occasions in his country.

    Further at CB 63:

    “The applicant does not have high profile he is not a terrorist, but police believe that he is associated with the militants and has information leading to the arrest of his known militant brothers who advocate Khalistan… The above country reports substantiate that applicant is in a high risk group as such perceived to be association with Militant group who advocate Khalistan who be considered involved in working against the authority…”

14. Mr. Free submitted that the Tribunal properly identified the claim as it related to political opinion and dealt with the claim on that basis.
    I agree with his submission and particularly note the Tribunal’s “Findings and Reasons” at CB 81.9 to CB 82.1:

    “In general terms, the country information given above shows that Sikhs practise their politics freely whether they vote for solely Sikh parties such as Akali Dhal or for more mainstream parties such as Congress; even open support of Khalistan is allowed and is not seen (and punished) as a sign of extremism. I am thus not satisfied that the applicant faces persecution in India over the expression of his political opinion, whatever it might be.”

15. The amended application also complains that the Tribunal did not consider the applicant’s adviser’s submissions (reproduced at CB 61 to CB 66). The applicant did not provide any specificity in support of this complaint, or point to any specific failure by the Tribunal to consider any claim, or evidence, submitted by the adviser on the applicant’s behalf.

16. If the applicant’s complaint is that the Tribunal did not specifically refer to the adviser’s submission in its “Findings and Reasons”, then on its own, and in the circumstances of this case, this would not assist the applicant now before the Court. The Tribunal clearly makes reference to “having before it the application for review and attendant documentation” (CB 73.8). Further, and more pointedly, the Tribunal makes reference to:

    “All evidence submitted by or on behalf of the applicant has been taken into consideration in the preparation of this decision.” (CB 75.1)

17. On what is before the Court now the only material submitted “on behalf of the applicant” is the submission by his adviser at CB 61 to CB 66. Further this submission, for the most part, makes reference to the US Department Report on Human Rights 2000, another Tribunal decision of 1999, excerpts from the “Handbook” (I understood this to be the “UNHCR Handbook on Procedures and Criteria for Determining Refugee Status”) and some commentary on the applicant’s circumstances. On a plain reading of the Tribunal’s decision record I cannot see that the Tribunal ignored any claim put forward by the applicant. The Tribunal referred extensively to country information, and the weight to be afforded to such information is a matter for the Tribunal. In any event the Tribunal reports:

    “Country information relevant to the applicant’s claims was discussed at the hearing.” (CB 74.9)

18. The application also complains that the Tribunal's decision was not based upon reasoning which provided a rational or logical foundation. While some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“S20”) expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (“NACB”) at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error.

1. In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162, Moore. J held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [57] the Court stated that:

   “[57] …The observations in the joint judgement in S20/2202 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s. 85(v) or the exercise by this Court of its analogous statutory jurisdiction under s. 39B of the Judiciary Act.  The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error is likely to be quite limited.”

   I note also that there is authority in the Full Federal Court decision of VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error.

2. In any event, I cannot see that this claim can be made out in this case. The material before me reveals that the Tribunal looked at the claims put before it by the applicant and, in particular, as these claims were articulated at the hearing before it. The decision record further shows that the Tribunal analysed the applicant’s evidence. It accepted some, and for reasons given rejected other evidence. It found, in the context of the claims it accepted, and in the context of independent country information, to which it referred, that the harm suffered in the past was not such as to amount to persecution. Nor that he would suffer persecution in the future for his political opinion. Nor further could it be satisfied that on independent evidence before it the applicant would face hardship, or discrimination, for reasons of his ethnicity or religion. All these findings were open to it, and the Tribunal gave clear reasons. I cannot see that the Tribunal's analysis suffered for want of logic or that it was infected by irrational considerations. 

3. A further complaint is that the Tribunal did not observe the Act “properly” in the making of the decision. On the material before me I can find no such error. The Tribunal invited the applicant to a hearing and on the material before me complied with all the relevant notice requirements in this regard. There is nothing before me to show that the Tribunal failed to comply with s.424A of the Act. Independent country information that the Tribunal referred to in its decision record clearly falls within the exception provided in s.424A(3)(a) from the requirement to put such information to the applicant pursuant to s.424A(1). The further information on which the Tribunal relied beyond that was information provided by the applicant at the hearing that the Tribunal conducted with him. This material fell within the exception in s.424A(3)(b) of the Act.

4. The first complaint, at page three of the amended application, is a statement that the Tribunal found that the totality of the country information did not show that independent politicians are persecuted in India. This appears to be another aspect of the complaints already dealt with. The Tribunal clearly made no such finding. What it found, relevantly, was that in looking at the applicant’s circumstances and with reference to relevant country information (which it discussed with the applicant at the hearing) the applicant could have “availed himself of the protection of the authorities.” Further, that as a member of Akali Dal he would have enjoyed its “full support” (CB 81.3). However, if this is a challenge to these Tribunal findings then this complaint clearly seeks impermissible merits review (Wu Shan Liang).

5. The amended application also complains that the applicant did not receive proper notice of the hearing date. No details are provided. I note that the applicant did, in fact, attend the Tribunal hearing, provide evidence and submissions, and responded to questioning. There is nothing before the Court to substantiate any claim that there was a breach of the requirements of procedural fairness by the Tribunal. The respondent submitted that the applicant has not identified any proper complaint on common law grounds about the procedure which was adopted by the Tribunal. I accept this. Further, the applicant’s application to the Tribunal was filed before the introduction of s.422B to the Act. But there is, in any event, nothing before the Court to show any failure in this regard pursuant to the relevant statutory requirements that would have applied at the time. At the hearing before the Court the applicant asserted that he “was informed properly of the hearing date”. Nonetheless, I considered the claim as put in the amended application and can find no basis to sustain it.

6. The applicant also complains that the Tribunal made its decision without “proper investigation”, and that he was not afforded procedural fairness. No particulars have been provided by the applicant. If the applicant’s complaint is that the Tribunal made up its mind without making enquiries regarding the applicant's claim, then the applicant has not said what enquiries the Tribunal should have pursued. In any event there is no general obligation on a Tribunal to make enquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] per Gummow and Hayne JJ.). Further, that if there is such an obligation arising from exceptional circumstances (per Wilcox J. in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170) the applicant has put forward no such exceptional circumstances which would serve to require the Tribunal to make such enquiries and nor are any such circumstances evident on the material before me.

7. I note for the applicant’s benefit that there is no obligation on the Tribunal to make out his case for him. The Tribunal’s obligation is to provide the opportunity for him to present his case, and then to properly consider the relevant material before it. The applicant, who also had the benefit of a migration adviser during the conduct of the review by the Tribunal, was put on notice, by way of the Tribunal’s letter of invitation to a hearing of 12 June 2002 (CB 58 to CB 59), that he should send to the Tribunal any documents, or written arguments, that he wanted the Tribunal to consider (CB 58.9). I note that the applicant took this opportunity and sent written submissions to the Tribunal through his authorised recipient (CB 61 to CB 66). He was also provided with a further opportunity at the hearing itself to present any “comments” regarding his claims. There is no evidence before me that the Tribunal did not provide the opportunity that it was obliged to provide at the hearing. In all therefore, these complaints do not succeed. The applicant has brought nothing before this Court by way of evidence as to what he says occurred at the hearing that the Tribunal conducted with him and the applicant has put no evidence before the Court to challenge the Tribunal's account of what occurred at that hearing. I note that the Court can only proceed on the evidence before it: (NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241).

8. At the hearing before the Court the applicant sought to emphasise that he did have a high political profile and that the Tribunal did not believe him. The applicant referred the Court to his statement attached to his protection visa application and in particular at CB 26:

   “After my release, I joined Akali Dal and started working with their legal department and moved to town, and started working at Grenwal Hotel Pty Ltd as an accountant.”

9. The applicant submitted that this statement showed that he had a high profile and that the Tribunal did not believe him. The Tribunal’s decision record clearly reveals that the Tribunal accepted that the applicant had joined Akali Dal (CB 80.3). The applicant now appears to argue that such an action gave him a high political profile which put him at risk of persecution. The Tribunal clearly dealt with this issue and found that, in relation to his joining Akali Dal, this would not put him at risk of harm from the authorities (CB 82.2). It found that he could, in the circumstances presented, (which were accepted by the Tribunal) obtain the protection of the authorities, and in any event Akali Dal would have provided its full support (CB 81.3). In all, the applicant’s complaint does not rise above a request for impermissible merits review. That the Tribunal did not believe some aspects of his “story” is a matter for the Tribunal within the context of the findings of fact. Such findings, including findings on credibility, are within the proper exercise of its function (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1).

10. Mr. Free also submitted, that notwithstanding the complaints above, that even if there was jurisdictional error in the Tribunal decision the Court should refuse relief for discretionary reasons unless the applicant is able to give a satisfactory explanation for the delay. The Tribunal decision was handed down on 21 November 2002 and the application was filed in this Court on 14 April 2005. There is nearly 2 ½ years delay between the Tribunal’s notification of its decision to the application and his application for judicial review.

11. In my view the delay in this case was unwarranted and unexplained, which would justify the withholding of relief: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at 495 to 496 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 per McHugh J. at [80].

12. The only attempt to explain the delay in filing his application for judicial review was made by the applicant at the hearing before the Court where he submitted that he was “not aware of the rules and regulations”, and did not know when to lodge the application. Even putting aside that this explanation was not offered in any evidentiary context, or even with any detail to support the claim, the material before the Court reveals that following the handing down of its decision (CB 67), the Tribunal wrote to the applicant by letter (CB 69) sent to his adviser, who had also been authorised by the applicant to receive correspondence on his behalf (CB 53). This letter set out clearly that the applicant could seek judicial review of the adverse decision and that “strict time limits” applied.

13. In all, I cannot see jurisdictional error in the Tribunal’s decision.

    
    

    The applicant’s complaints are not made out. Nor can I discern, on the material before me, any other ground of review, let alone one which would ultimately be of assistance to the applicant in obtaining the relief sought. The application is dismissed on this basis. Separately, even if jurisdictional error could be discerned, I would have refused to exercise the relief sought in the exercise of the Court’s discretion.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date: 16 October 2006