SZGDS v Minister for Immigration

[2006] FMCA 677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGDS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 677

MIGRATION – Refugee – failure to follow s.424A – Tribunal's decision made on an entirely separate and independent basis – test for “persecution” – challenge of Tribunal’s findings – unwarrantable delay – application dismissed.

Migration Act 1958, ss.91R(1), 91R(2), 424, 424A, 424A(1), 424(3)(b), 474

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256
VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
R v Australian Broadcasting Tribunal; Ex parte Fowler & 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
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

First Applicant: SZGDS

Second Applicant: SZGDT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1062 of 2005

Judgment of: Nicholls FM

Hearing date: 28 November 2005

Date of Last Submission: 17 March 2006

Delivered at: Sydney

Delivered on: 15 May 2006

REPRESENTATION

Counsel for the Applicant: Mr. S. El-Hanania

Solicitors for the Applicant: Penhall & Co. Lawyers
Hopper & Co. Lawyers
Slattery Thomson Solicitors

Counsel for the Respondent: Ms. T. Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1062 of 2005

SZGDS

First Applicant

SZGDT

Second 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 27 April 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 December 2000 and handed down on
   11 January 2001 affirming the decision made on 29 October 1998 by a delegate of the respondent Minister to refuse protection visas to the applicants. The Tribunal is joined as the second respondent in these proceedings.

2. The applicants before this Court (as set out in the application to the Court) are husband and wife, who are nationals of Egypt. They arrived in Australia on 25 June 1997. The applicants applied for protection visas on 2 October 1998. The application to the first respondent’s Department, with a covering letter from the applicant’s then representative, Mr. Sam Issa of Harrisons (Lawyers), is reproduced at Court Book (“CB”) 1 to CB 15, and in particular in an attached statement, the English version of which is reproduced at CB 30 to CB 31. I note that at that time only the applicant husband made claims to be a refugee (CB 8). The applicant wife applied as a member of his family unit and did not have her own claims to be a refugee (CB 14). Although, subsequently before the Tribunal, the applicant wife did give evidence of incidents of harm which she claimed to have suffered.

3. I also note that the applicants’ son, who was born in Australia on
   9 April 1998 (and in respect of whom the Tribunal found was also a citizen of Egypt) also applied as part of the applicant husband's family unit (CB 15). This application was refused on 29 October 1998. The notification to the applicants and the delegate’s decision record is at CB 39 to CB 50.

4. It appears that only the applicant husband sought review by the Tribunal (the application to the Tribunal is reproduced at CB 56 to CB 59 and the relevant parts of the application form do not disclose any other applicant other than the applicant husband). Further, the letters from the applicants’ then representatives, (Firmstone & Associates – per Mr. S. Issa) reproduced at CB 63 and CB 64, refer only to one applicant, and that is the applicant husband. Nonetheless, the Tribunal proceeded to review the application on the basis that both the applicant’s wife and son were also parties to the application for review before the Tribunal (CB 66 and CB 106.1). Again it appears that the applicant husband was the primary claimant, although the applicant wife gave evidence before the Tribunal. It does not appear that any specific claims were made on behalf of the applicants’ son, other than as they derived from his parents’ circumstances. The applicants’ son was not named as an applicant in the application or amended application now before the Court. No application was subsequently made to add the applicants’ son as a party to the proceedings before me.

5. The applicants’ claims were variously set out in their application to the first respondent’s Department reproduced at CB 1 to CB 29, and in particular, in an English translation of a statement reproduced at CB 30 to CB 31, and in the applicant husband’s application to the Tribunal reproduced at CB 56 and CB 59. The Tribunal’s decision record, as reproduced at CB 108.5 to CB 116.2, sets out the applicants’ claims, including its account of hearings it conducted with the applicants. The applicants gave oral evidence before the Tribunal at hearings that it conducted on 25 July 2000 and 1 November 2000 (CB 108). The applicants provided additional evidence in support of their claims on 21 August 2000 (CB 78 to CB 89) as submitted by Firmstone & Associates, who were their representatives at that time. An employee of that firm was present at the first hearing, but not the second.

6. The applicant husband claimed to have a well founded fear of persecution arising from his refusal to participate in the activities of an Islamic fundamentalist group in Egypt, and that he was harassed by members of this group. The Tribunal's reporting of the applicant’s claims, based on submissions in support of the application for a protection visa, and written submissions in support of the application for review (and oral evidence that the applicant husband and wife gave to the Tribunal at hearings held on 25 July 1998 and on 1 November 2000) are recorded in its decision record at CB 108.5 to CB 116.2. Essentially the applicant husband claimed that:

   1)He was introduced to a group of Islamic fundamentalists who after a period of time invited him to join in a robbery. The applicant husband refused to take part in their activities, and then started to experience daily harassment. These incidents of harassment were reported to the police, but no action was taken (CB 109.1 to CB 110.2).

   2)In February 1997 the applicant husband was “bashed” by four men from the group when he refused to go to a mosque with them. Again the police were informed, and no action was taken (CB 109.8).

   3)One week before the applicant husband's departure from Egypt the group stole his car which was parked in front of his house. Again the police were informed and no action was taken (CB 110.3).

   4)In July 1997, after his departure, his factory (he and a partner had started their own business in June 1996 as manufacturers of musical instruments) was destroyed in a fire (CB 110.8).

7. The applicant wife also gave evidence and claimed that:

   1)Her husband's car was burnt, not stolen (CB 111.2).

   2)In June 1998 she returned to Egypt because she was “homesick” for her family (CB 111.3).

   3)She intended to remain in Egypt, but the week after her return she received anonymous telephone calls threatening her life, and that of her son. She was also threatened whilst at the shops. Further, she was attacked by someone in the street who sprayed acid on her. This incident was reported to the police, and the applicant wife was subsequently forced to change her place of residence (CB 111.4).

8. The applicants also submitted a number of documents in support of their claims to which the Tribunal makes reference in its decision record at CB 111.8 to CB 112.3:

   1)A letter stating that the applicant husband had been dismissed from his employment (English translation at CB 79).

   2)Three reports by divisions of the “Directorate of Alexandria Security” concerning the theft of the applicant husband's car, a fire reported at his shop, and a car accident involving the applicant wife (see CB 81, CB 84 and CB 87 for English translations). 

9. The Tribunal's “Findings and Reasons” in its decision record are reproduced at CB 116.3 to CB 121.4. Relevantly:

   1)It had a number of concerns about the applicants’ evidence which led it to have serious doubts about their account of the circumstances which led to their departure from Egypt (CB 116.9):

   a)There were a number of discrepancies between the applicant husband’s written statement (which appears to be the statement to the first respondent’s Department reproduced at CB 30 to CB 31) and his oral evidence to the Tribunal given at each of the two hearings before it.

   b)There were significant inconsistencies between the applicants’ evidence and independent information available to the Tribunal

   c)The applicant husband’s account was “simply inherently implausible” to the extent that it cannot be believed (CB 117 .1 to CB 117 .2).

   2)The Tribunal set out instances of these inconsistencies at CB 117.3 to CB 118.6.

   3)Not only the independent evidence, but “common sense” suggested that a group (such as the Islamic fundamentalist group put forward by the applicant husband as the source of his fear) could not possibly operate in the manner described by him. It found that the applicant husband’s account, that such groups would openly approach a person who apparently showed no particular interest in their philosophy, as highly implausible (CB 118.8).

   4)For reasons therefore based on the inconsistencies and implausibility of the account, the Tribunal concluded that the applicant husband’s account to have been recruited by the Islamic group was not true, and that this finding, and difficulties with other aspects of the applicant’s account, caused the Tribunal to doubt the veracity of his other claims (CB 119.2).

   5)The Tribunal gave as examples of other difficulties:

   a)The applicant husband’s failure to mention, in his written statement, that he had taken to the police a suitcase containing documents, gold and arms belonging to the Islamic group, a claim which he subsequently made. The Tribunal did not accept the applicant husband’s explanation that he originally left it out because it would take “too long to write the whole account” (CB 119.4).

   b)In any event, “apart” from this, the Tribunal found this claim was “unbelievable”, in that it could not accept that such a group would keep documents and valuables in a grave or cemetery, or that the applicant would be shown these items in the circumstances he described (CB 119.5).

   c)The Tribunal also noted discrepancies between the applicant husband’s claims and the applicant wife's claims in relation to the applicant's car, and that in the circumstances of the case before it, this cast significant doubt on the applicants’ whole account (CB 119.8).

   6)For the above reasons the Tribunal did not accept that the applicant husband was targeted for recruitment by the Islamic group, or that he stole their documents and goods or that he took them to the police (CB 120.1).

   7)The Tribunal accepted that the applicant wife may have experienced “some unfortunate incidents” upon her return to Egypt after the birth of her child. It accepted that she had been threatened, that acid was sprayed on her, that her car was forced off the road, and that her father's house was broken into. Further, it noted that police reports confirmed the occurrence of these incidents (CB 120.3).

   8)The Tribunal found however that it was significant that no mention was apparently made to police of the applicants’ (especially the applicant husband’s) problems with the Islamist group, who the applicant wife thought was responsible for these incidents, and found it difficult to accept that the applicant wife would not have told police the entire story (CB 120 .4).

   9)In these circumstances, and given its findings in relation to the applicant husband's account, the Tribunal did not accept that these incidents were directed at the applicant wife by the particular Islamic group, or any similar group, and could not be satisfied on the basis of what it considered to be the credible evidence before it that any harm faced by the applicant wife was directed at her for any Convention reason. It found that this was also true of the applicant husband’s claims regarding the problems faced by his business partner since his departure, including the burning of the business (CB 120.6).

   10)The Tribunal also rejected the applicant husband’s evidence that the government in Egypt was powerless to act against the extremist Islamic groups. The Tribunal relied on independent information available to it and noted, further, that the applicant wife reported all of the incidents she encountered on her return to Egypt to police who apparently prepared reports and investigated. It further found that given the circumstances of the particular incidents (not telling “the police the entire story”) it was not surprising that the police may have been unable to identify the perpetrators of the incidents, and that this did not lead to a conclusion that police failed to provide effective protection, as that term was understood in the context of the Convention (CB121.2).

   11)The Tribunal found that there was no credible evidence to suggest that the authorities did, or would, fail to (reasonably) protect the applicant and his family, or that they would be powerless to act. The Tribunal found the evidence before it was that the Egyptian government did not condone or tolerate the activities of extremist groups, and that there was no credible evidence to support a finding that the Egyptian authorities would fail to provide protection to the family for any Convention reason (CB 121.4).

   12)The Tribunal's conclusions were:

   a)It did not accept that the applicants left Egypt because they feared harm from a group of Islamic fundamentalists (CB 121.4).

   b)It did not accept the applicant husband was harassed in the manner, or for the reasons, claimed prior to his departure from Egypt (CB 121.5).

   c)While it accepted that the applicant’s factory may have been burnt in his absence, and that his wife had been subjected to several “unpleasant” incidents when she returned to Egypt in 1999, it did not accept that these incidents were directed to the applicant husband or the applicant wife, for the reasons that they claimed. There was no credible evidence to support a conclusion that these incidents were directed at the applicant or the applicant wife for any Convention reason (CB 121.7).

   d)That the credible evidence before the Tribunal suggested that the Egyptian authorities would provide effective protection to the applicants, against any serious harm they may face, even if it were from an Islamic extremist group (CB 121.8).

   e)In these circumstances the Tribunal was not satisfied that the applicants had a well founded fear of Convention persecution in Egypt.

   f)As no specific Convention claims were made by or on behalf of the applicant child, there was no basis on which the Tribunal could be satisfied that he was a refugee, and that the fate of his application therefore depended on the outcome of his parents’ application. As it had found the parents did not satisfy the criteria for a protection visa, it followed that the applicant child could not be granted a protection visa (CB 121.9).

10. The history of this matter before the Court is:

    1)On 27 April 2005 the applicants (husband and wife) filed the application in this Court seeking review of the Tribunal’s decision made on 13 December 2000, and handed down on 11 January 2001. This was done with the assistance of lawyers Penhall & Co. An affidavit sworn by Mr. El-Hanania (the applicants’ solicitor) on 27 April 2005 was also filed.

    2)On 29 April 2005 solicitors Clayton Utz filed a notice of appearance on behalf of the first respondent.

    3)At the first Court date in this matter on 5 May 2005, Mr. El-Hanania (who subsequently appeared for the applicants at the hearing before me) appeared for the applicants. [It appears he was employed by Penhall & Co. at that time].

    4)Orders were made by consent, relevantly, that required the respondent:

    a)To file and serve a bundle of relevant documents by 2 June 2005 (Order 2).

    b)To file and serve written submissions 7 days before the hearing (Order 10).

    5)The applicant was:

    a)Required to file and serve an amended application giving complete particulars of each ground of review relied upon by 16 June 2005 (Order 4). [The originating application contained no grounds of review].

    b)Provided with the opportunity to file and serve any affidavit material containing additional evidence to be relied upon, including a transcript of the Tribunal hearing, by 16 June 2005 (Order 3).

    c)Required to file and serve written submissions 14 days before the hearing (Order 9).

    6)The matter was set down for final hearing on 4 July 2005.

    7)On 26 May 2005 the first respondent’s solicitors filed the relevant documents by way of the court book in this matter.

    8)By letter dated 27 June 2005, (copied in the correspondence folder of Court's file) Penhall and Co. wrote to the Court seeking an adjournment of the final hearing date on the basis that
    Mr. El-Hanania had been unwell with heart disease, and was under medical supervision, following his release from hospital on 20 June 2005. It was claimed that he was working “on a light duty basis for the next month until he regained his health.” The letter also advised that the applicants “do not wish to embark upon another lawyer as they feel comfortable to retain Mr. El-Hanania rather than go elsewhere”. The letter advised that Mr. El-Hanania would amend the application within 14 days to indicate that the applicants’ child was “part of the proceedings at the hearing.”

    9)By letter dated 28 June 2005, Penhall & Co. provided further details of Mr El-Hanania’s medical problems.

    10)As a result the final hearing date was vacated, and the matter was set down for further directions on 10 August 2005. A tentative date for the final hearing was set for 28 November 2005.

    11)At the directions hearing on 10 August 2005 the applicants were represented by “T. Richard” of Hopper & Co. The following orders were made:

    “1)Applicant to file and serve an amended application with full particulars by 7 September 2005.

    2)Applicant to file and serve written submissions 14 days prior to the hearing date.

    3)Respondent to file and serve written submissions seven days prior to the hearing date.

    4)Applicant’s representatives undertake to file and serve a notice of change of solicitors within 7 days of this date.”

    The hearing of the matter was confirmed for 28 November 2005.

    12)On 17 August 2005 a Notice of Appearance was filed by Hopper & Co. lawyers [Mr. El-Hanania appears to have moved to this firm in the meantime].

    13)On 18 November 2005 the respondent filed an outline of submissions.

    14)On 21 November 2005 the applicants served a proposed amended application on the respondent’s solicitors. [Although a copy was faxed to my Chambers it does not appear that this proposed amended application was filed in Court].

    15)On 24 November 2005 the applicant served an outline of submissions on the respondent, and again a copy was sent to my Chambers (although I cannot see that this was filed in Court either).

    16)On 25 November 2005 the applicants filed and served two affidavits:

    a)The affidavit of the applicant husband sworn on 15 November 2005.

    b)The affidavit of the mother of the applicant husband, sworn on 23 November 2005.

    17)On 25 November 2005 the respondents filed a Notice of Objection to Competency, objecting to the jurisdiction of this Court to try this application on the grounds that the Tribunal decision complained of was made on 13 December 2000, and notified to the applicants on 1 February 2001, and that the application to this Court was made on 27 April 2005 (well outside the period of 28 days (allowed by the Act) from the notification of the decision).

1. At the commencement of the hearing on 28 November 2005 Mr. El-Hanania appeared for the applicants, and Ms. Wong appeared for the respondent. I made an order joining the Tribunal as the second respondent in these proceedings.

2. Mr. El-Hanania sought to rely on the proposed amended application. He also sought leave to read his own affidavit sworn on 28 November 2005 (the day of the hearing) in support of the late service of the amended application. Ms. Wong for the respondent objected to the late service of the amended application on the ground that it failed to comply with the Court’s orders requiring such service on or before
   6 September 2005 [over 2 ½ months earlier]. I had some difficulty with the conduct of this matter on behalf of the applicants. I accept that
   Mr. El-Hanania had unfortunately fallen ill, and readily granted the adjournment, in late June 2005, of the final hearing date from July 2005 to November 2005 (I should also note that the respondent’s solicitors readily agreed to this course of action). However, the failure to attend to this matter in a more timely fashion in recent times is not satisfactorily explained by Mr. El-Haninia’s affidavit. In circumstances where, even on his own account, Mr. El-Hanania advised that he had returned to full-time work three weeks before the hearing, and prior to that had been working on a limited basis “over September 2005” it is not unreasonable to expect that any amended application, and written submissions, would have been prepared in a more timely fashion. This is particularly so in circumstances where Mr. El-Hanania is not a sole practitioner, but was at the relevant times an employee of a law firm (at that time - Hopper & Co.). I do not see as acceptable Mr. El-Hanania’s excuse that only he conducted migration matters in the firm, and that the principal of the firm did not do any federal law work. Further, the representative of this firm, who attended the directions hearing on
   10 August 2005, should have been well aware of Mr. El-Hanania's medical condition, and clearly would have known of the Court's order that an amended application, with full particulars, had to be filed by
   7 September 2005. Yet the firm seems to have done nothing to ensure that its obligations in line with the Court’s orders were met. Ms. Wong also pressed the objection to the amended application on the basis that there had been prejudice to the Minister, as the Minister had been put to additional expense in that the Minister’s submissions were filed in accordance with Court orders and in the absence of anything further at the appropriate time from the applicants. Further, on the basis that
   Mr. El-Hanania’s affidavit (even accepting that he had been working in a limited capacity in September 2005 and only on a full-time basis for three weeks) did not provide an adequate explanation as to why the matter could not have been given the attention it deserved within the time limit set.

3. Notwithstanding all of the above, I agreed to proceed on the basis of the amended application, and the outline of submissions put in support. While the Minister may have been put to additional expense,
   Ms. Wong was unable to show that the amended application caused any prejudice to the Minister other than on the possible issue of costs. I saw this as being properly and appropriately dealt with if, and when, the issue of costs became relevant. I could not see that the applicants should be disadvantaged given their lawyer’s ill health (at least initially), and what perhaps (on the face of it) may be a failure of the principal of Mr El-Hanania’s firm, to properly concern himself with the conduct of litigation being carried out.

4. The amended application, while asserting one ground of review, raises two stated complaints about the Tribunal’s decision:

   1)A breach of s.424A of the Migration Act 1958 (“the Act”) (in that the Tribunal “misconstrued and misapplied” this section).

   2)That the Tribunal “misconstrued” s.91R(1) and (2) of the Act and misinterpreted the definition of “persecuted” in s.91R.

   3)The applicant also appears to complain that the Tribunal’s finding as to credibility was not supported by any probative evidence and was unreasonable.

5. In relation to the evidence before me:

   1)Mr. El-Hanania did not seek to rely on his affidavit of 27 April 2005. This affidavit, as he submitted, was only relevant to the release of the applicant husband from the Villawood Immigration Detention Centre, and it was not relevant to the issues currently before the Court.

   2)The affidavit of the applicant husband's mother sworn on
   23 November 2005 and filed on the same date, asserted that she arrived in Australia in 1996 on a visitors visa, subsequently applied for, and was granted a “business” visa (for a period of four years) and then subsequently applied for a protection visa, that was granted on 17 August 2004. Ms. Wong objected to the late service of this affidavit, and pressed the objection on the basis of relevance. Ultimately, when I pressed Mr. El-Hanania as to the relevance of these issues before the Court, he was unable to explain any relevance and ultimately stated that “perhaps I should not read this affidavit”. I did not admit this affidavit into evidence on the basis of the lack of relevance to the issues now before the Court.

6. Mr. El-Hanania also sought to read the affidavit of the applicant husband sworn on 15 November 2005.

   1)Ms. Wong objected to this evidence, firstly on the issue of prejudice, and secondly, in part on the manner in which it was drafted. She submitted that the affidavit principally sought to address the issue of whether the applicant [husband] was alerted to the Tribunal’s decision, and the handing down of this decision. Her position was that as the matters raised in the affidavit go to explaining the lateness of the filing of the application before this Court, and that this is relevant to the issue of whether the delay in filing the application to the Court was unwarranted, or conversely, could be explained, that the respondent was prejudiced by the late production of this affidavit. This was put on the basis that the Minister would not have been given the opportunity to respond to the matters asserted by the applicant by way of, for example, gathering evidence to oppose the applicant's assertions.

   2)Ms. Wong further submitted that following the late notice of the applicant husband's affidavit, it had come to the attention of the Minister's legal representatives that the applicants may have been part of “a class action”.

   3)I advised Ms. Wong that given that she was pressing the issue of unwarrantable delay, I could not deny the applicant the opportunity to put forward material that sought to explain the alleged period of delay. Particularly, as it was a period of four years that was being pressed by the respondent, which on its face would amount to considerable delay, if left unexplained. Any prejudice in this regard to the respondent, in relation to an opportunity to answer this material, could be provided, for example, by way of additional time to provide any further evidence.

   4)Ms. Wong then indicated that the respondent had a copy of a Notice of Discontinuance, filed by the applicants in the Federal Court of Australia, on 23 April 2004. This Notice discontinued proceedings before that Court (and I should just note that it appears that those proceedings involved both the applicants before me and their son).

   5)As a result, Ms. Wong argued, the basis of her objection to the applicant husband's affidavit was that the applicants did know of the Tribunal's decision, and they must have known so as to have been able to commence the Court proceedings to which the Notice of Discontinuance related. She tended a copy of the Notice of Discontinuance which was subsequently marked as Respondent's Exhibit 1 (“RE1”).

   6)Ms. Wong then proposed, given the claimed nature of the proceedings before the Federal Court, that there be mutual agreement between the parties that the period of delay was now to be taken from 23 April 2004 until the date that proceedings before me were filed (27 April 2004), a period of just over one year (instead of the four year period previously pressed by the respondent).

   7)She pressed that the respondent would now seek dismissal on the basis of unwarrantable delay, but would rely only on this period.

   8)The respondent's submission at this point of the proceedings was that the objection to the applicant husband’s affidavit material coming before the Court stood on the basis that it went to the issue of unwarrantable delay (albeit now only for one year, and not four), but nonetheless that the respondents position remained prejudiced given the late attempt at putting this material before the Court.

   9)Mr. El-Hanania indicated that he was unaware of any proceedings before the Federal Court involving the Tribunal decision and submitted that it may be possible that his clients were not aware that they were part of a class action and suggested that the applicant's former solicitor may have initiated proceedings and ended the proceedings without the applicants’ knowledge.

   10)Mr. El-Hanania sought a short adjournment so that he could obtain instructions from his clients on the basis, as he said, that he needed to know directly from the applicant husband if he was “aware that he was part of this class action.”

   11)I granted the adjournment and on resumption Mr. El-Hanania submitted that the applicant was apparently part of this class action. On that basis he stated that there was agreement reached between himself and Ms. Wong that the delay was only one year.

   12)However, in relation to that delay he still needed to provide evidence to counter the respondent's position. To progress matters, I asked Mr. El-Hanania to indicate which part of the applicant’s affidavit he sought to rely on and press. He submitted that he wanted to press paragraphs 14, 15, 16, 18 and 19 as they were the “crucial” paragraphs, and that he would not seek press any of the other paragraphs. 

7. In relation to each of these paragraphs Mr. El-Hanania submitted that the relevance to the applicants’ case before the Court was:

   1)Re: Paragraph 14

   That “their argument” relates to ss.424 and 424A of the Act in that the Tribunal should have sought additional information, and put adverse information to the applicants. I pressed
   Mr. El-Hanania as to what this information was, given that none of this had been particularised in the amended application. Nor for that matter did the applicant’s written submissions make reference relevantly to anything other than an unparticularised statement of an alleged failure of the Tribunal to invite the applicants to comment on adverse information pursuant to “s.424” of the Act. Mr. El-Hanania submitted that the Tribunal's failure was in relation to the “credibility issue of the applicant and the applicant's wife in relation to certain incidents”. He submitted that the Tribunal should have sought more information from the applicants to satisfy itself in determining whether there was a real chance of persecution. He confirmed that the complaint was that the Tribunal did not put to the applicants its adverse view of the credibility of their claims relating to the incidents that they said had occurred in Egypt. Ms. Wong did not object to my taking into evidence paragraph 14.

   2)Re: Paragraph 15

   Mr. El-Hanania submitted that the applicant (husband) was not invited to put forward any evidence on behalf of his son to support his claim of being a “target”, and that he would require a protection visa. Mr. El-Hanania’s claim was that the Tribunal “did not account [that] the child is part of the proceedings”. When I pressed as to how this was relevant to the grounds now put forward, after indicating to him that what he now appeared to be asserting was a failure to consider a relevant consideration, he indicated that “this paragraph 15” went to the “ground of s.424 of the Act”. As best as I could ascertain from Mr. El-Hanania, the complaint appeared to be that the applicant wife had given information to the Tribunal about the dangers faced by the applicant son at the second hearing before the Tribunal, and that the Tribunal did not give any weight to the applicant wife’s evidence. Mr. El-Hanania continued to press that this was relevant to s.424A of the Act (although at times he seemed to say it was s.424) and referred me to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) at [161] per Kirby J.:

   “…the purpose of Pt 7, Div 4 of the Act, in which s 424A appears, is to provide a series of powers to, and to cast obligations upon, the Tribunal for (as the title of the Division describes it) the "Conduct of review". The addition of s 424A to these general provisions governing the conduct of the review must be seen as an attempt by the Parliament to provide a general scheme to ensure that such review is conducted with scrupulous fairness for the often vulnerable persons invoking the Tribunal's jurisdiction and powers.”

   When I pressed Mr. El-Hanania as to how this would assist in showing the relevance of the matters asserted in paragraph 15 of the applicant's affidavit to any ground of review that he had put forward in the amended application, he responded that the complaint had to do with the way the Tribunal conducted its review, by not further “invoking and asking itself questions about the applicant's child”, and that its failure to do so amounted to “a jurisdictional error of law.” Ms. Wong submitted that paragraph 15 should not be admitted because, it was firstly put in the form of a submission, and secondly, was not relevant to the amended application. I agree with Ms. Wong’s submission. But, in any event will deal with the applicant’s general complaint in this regard below.

   3)Re: Paragraph 16

   Mr. El-Hanania submitted that the applicants’ then solicitor [at the time of review before the Tribunal] failed to attend the Tribunal hearing “for no apparent reason” and that the applicant had been “negligently represented”. When I pressed as to the relevance of this to the grounds of review and issues before the Court now, Mr. El-Hanania submitted that paragraph 16 went to the issue of unwarrantable delay. In relation to paragraph 16,
   Ms. Wong submitted that this did go to the issue of unwarrantable delay, as the matters asserted went to a period prior to April 2004. As the parties had agreed that the period of delay was to be taken from after April 2004, there was no relevance in the matters asserted at paragraph 16 to the issue as now before the Court.

   4)Re: Paragraph 18

   Mr. El-Hanania argued the matters put forward at paragraph 18 were relevant to the issue of delay in that the delay between the date of the Notice of Discontinuance of the matter before the Federal Court and the filing of the current application in this Court was due to the action (or alleged inaction) on the part of the applicants’ then solicitors. In relation to paragraph 18, Ms. Wong submitted that this could possibly go to the issue of delay, but that it was so vague, and particularly as it related to claimed events “at a later date during the year of 2005”, that it was unclear whether and to what it may be relevant.

   5)Re: Paragraph 19

   Mr. El-Hanania submitted that paragraph 19 was relevant to support the applicants’ claim that the delay “was not on his part but on his legal representative’s part”. Ms. Wong’s submissions in relation to paragraph 19, were similar to those put forward in relation to paragraph 18.

8. Notwithstanding the concerns put forward by Ms. Wong with which I agree [and in particular the issue of whether the probative value of this material is outweighed by any unfair prejudice to the respondent], I nonetheless proposed to the parties that on the basis of giving the applicants as much of an opportunity as possible, I would permit the applicants to put the material as it stood in these paragraphs, but would deal with it with reference to the appropriate weight to be given to this evidence in all the circumstances before me. Ms. Wong agreed with this course of action.

9. At the conclusion of dealing with the preliminary matters, the amended application, and the matters of evidence (well over an hour into the hearing) Mr. El-Hanania made an application for an adjournment of the hearing. He submitted that he wanted more time to be permitted to identify the relevant issues in his client’s case on the basis that he had “health issues”, and that there was no one else available to deal with “this matter”. He also submitted that he was acting on a “pro bono basis” and wanted to assist the applicants as much as he could.
   He claimed that the applicant husband’s lack of funds was due to the position that “the first respondent’s has put him in” because the applicant husband “is unable to work to earn money”. He further claimed that he “wished” for more time to correct any errors in the material that was already before the Court and “perhaps to amend the application so therefore the applicant is able to identify the issues before you”. He claimed that “the applicant” would be prejudiced if he was not given such an opportunity and pressed that up until three weeks ago “the applicant” only had his [Mr. El-Hanania’s] services on a limited basis. The essence of Mr. El-Hanania’s request for an adjournment was that in all the circumstances of his ill-health, the applicant[s] had not been afforded “procedural fairness” before the Court to put before the Court all matters relevant to the case.

10. I refused Mr. El-Hanania's application for an adjournment. The application to the Court was made seven months before the hearing. The application was made with the benefit of a firm of solicitors assisting the applicants, and there is nothing before me to show that Mr. El-Hanania was ill at the time of the filing of the application
    (27 April 2005). In fact, he claimed to have acted for the applicant in April 2005 (in securing his release from Immigration Detention) and that it was only in May 2005 that he was found to be ill. In any event, Mr. El-Hanania, in spite of his assertions that he was the one and only person who had been assisting the applicants, has been for relevant periods a member of a firm that has acted for the applicants. In these circumstances, while I accept that in a small firm resources may be stretched, nonetheless having accepted a client (even on a pro bono basis) there surely is some responsibility on the principal of the firm to ensure adequate representation. Even putting that to one side, and accepting all that he has put to me about his illness, Mr. El-Hanania was still available and operating on a limited basis throughout September 2005, and on his own submission had been working full-time for the three weeks leading up to the hearing of the matter. In recognition of his past ill-health, the Court agreed to the late filing of an amended application, and submissions, and to consider evidence contained in an affidavit provided at a very late stage in the proceedings. Mr. El-Hanania did not come to this hearing and claim at the beginning of the hearing that he was still in ill-health and that he still had difficulties in preparing the applicants material, seeking an adjournment at the outset. Importantly, the adjournment was sought well into the hearing, an hour after its commencement. I cannot accept that Mr. El-Hanania (and his firm) would not have been aware, at the commencement of the hearing, of the case that had to be made out for the applicants to succeed. Mr. El-Hanania would have had the benefit of the material in the Court Book for sometime, and would have known the respondent’s case at least 10 days earlier by way of the respondent’s written submissions filed on 18 May 2005. Further,
    Mr El-Hanania provided advice, 3 days after receipt of the respondent’s submissions, to the respondent of the applicant’s proposed amended application and written submissions. Any failure therefore to identify relevant issues could not be said to be due to any lack of opportunity.

1. In all the circumstances, I am satisfied that the applicants have not been denied the opportunity to put forward their case. The application was made to this Court seven months ago. They have been represented by firms of solicitors throughout. While I accept that the one particular solicitor [Mr. El-Hanania] in those firms dealing with this case has been ill for a time, the recognition of that fact was the Court's willingness to allow a late amended application, the very late filing of written submissions and the taking into account, against strong objections, parts of the evidence that the applicant husband has put forward. Nor did Mr. El-Hanania specify what the matters, or arguments, were in respect of which he wished further time. I did not see his general assertions of needing more time, particularly when these were made well after an hour into the final hearing, and in the absence of any specifics in relation to which he needed more time, as being sufficient to justify a further adjournment of this matter. In all the circumstances therefore, I refused the application for an adjournment.

2. The issues therefore before the Court are:

   1)Whether the Court should exercise its discretion and dismiss the application for unexplained and unwarrantable delay (being as agreed by the parties, a delay of just over one year) leading to the making of the application to this Court.

   2)Whether the applicants’ contention (in the amended application) of a breach of s.424A of the Act goes to show jurisdiction error on the part of the Tribunal.

   3)Whether the Tribunal misconstrued and misapplied s.91R of the Act and whether this also goes to the issue of jurisdictional error.

   4)The respondent also pressed the Notice of Objection to Competency filed on 25 November 2005. (I note in this regard, that given that the applicants appear to have been involved in the Muin/Lie class action there was a possibility that this matter is not subject to the normal provisions of s.474. Apart from the Notice of Discontinuance which made no reference to anything other than the discontinuance of the proceedings in the Federal Court between the applicants and the Minister, there was nothing else before me to show whether s.474 could be applied in the normal way). This issue may be of relevance if I find against the respondent in relation to the above. It was pressed by Ms. Wong on this basis.

3. Following the hearing, but before Judgement could be handed down in this matter, the Full Federal Court handed down its decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. I granted leave to the parties to file further written submissions in relation to any relevant issues that may arise from that Judgement in connection to the matter before me. The respondents did file further submissions. I have nothing further from the applicants. I include the relevant considerations on this issue below.

4. The first ground of complaint put forward by the applicants in the amended application asserts a breach of s.424A of the Act.
   Mr. El-Hanania’s general submission was that the Tribunal did not follow the required steps contained in s.424A of the Act in inviting the applicant[s] to comment on appropriate circumstances and information relevant to the case. Mr. El-Hanania made a number of submissions in relation to this issue:

   1)That the Tribunal did not put the adverse views that it drew from the applicant husband's evidence to the applicant husband in writing as “required by SAAP”. To the extent that
   Mr. El-Hanania’s complaint extended to the Tribunal putting its adverse findings, including findings on credibility, to the applicants in writing for comment prior to making its final decision, then I can see no such obligation on the Tribunal pursuant to the statutory requirements that such adverse views be put to the applicant.

   2)In terms of information relied on by the Tribunal (although
   Mr. El-Hanania’s primary concern still appeared to be the adverse view taken by the Tribunal rather than the information relied on) it referred to the applicant husband’s identification of the group from which he claimed to fear harm as being made in three different ways and that this was noted by the Tribunal at
   CB 117.3 in its “Findings and Reasons”. The Tribunal’s decision record reveals that it noted that the applicant husband had identified the group from whom he feared harm in three different ways. It referred to the applicant husband’s written statement, (which in the context of the documents found in the Court Book can only refer to the written statement provided by the applicant to the first respondent's Department, reproduced at CB 30 to
   CB 31) and that at the first hearing the applicant husband referred to the group by a different name, and a further different name at the second hearing. I will deal with this issue below.

   3)That the Tribunal made a finding at CB 109.3 as to the leader of this group with an adverse inference drawn against the applicant husband. Mr. El-Hanania submitted that the Tribunal found that “in fact” this particular person named by the applicant as the leader of the extremist group was detained by Canadian authorities and was found not to be the leader of the group as claimed, and that this information should have been put to the applicant in writing. It is clear that in its decision record the Tribunal did make reference to the name of a person put forward as allegedly the leader of the group from which the applicant feared harm. However, it is also clear that the reference relied on by Mr. El-Hanania and reproduced at CB 109, is a reporting under the heading of “Claims and Evidence” of what the applicant said to the Tribunal (and in relation to the name of the leader of the group that he said at the first hearing), and the reporting that the applicant husband had made this statement. When I pressed Mr. El-Hanania as to where and how the Tribunal can be said to have relied on this statement in the making of its decision, Mr. El-Hanania pointed to the Tribunal’s finding at CB 116.9:

   “The Tribunal has a number of concerns about the applicants’ evidence, which lead it to have serious doubts about their account of the circumstances which led to their departure from Egypt.”

   4)Mr. El-Hanania submitted that the Tribunal had referred to information that the person that the applicant had named as being the leader of the Islamic extremist group from whom he feared harm, had been mistakenly detained by Canadian Immigration officials and was not in fact the leader of the group. However, a fair reading of the Tribunal's decision record, and in particular and relevantly the “Findings and Reasons”, reveals that the Tribunal cannot be said to have relied on any information in relation to the leader of the group in making its decision. In relation to that part of the Tribunal’s reference to the information provided by the applicant husband in its recounting of the “Claims and Evidence”, it is clear that even if it could be said that it subsequently relied on any such information, this is information provided by the applicant to the Tribunal at a hearing before the Tribunal and is information provided for the purposes of the application for review and is exempted by s.424A(3)(b) from the requirements set out in s.424A(1).

   5)To the extent that the Tribunal's decision record at CB 112 makes reference to this information obtained from a third source, (the Canadian report) there is nothing in its “Findings and Reasons” to show that it relied on this information in coming to its ultimate decision.

   6)That part of the Tribunal's “Findings and Reasons” referred to by Mr. El-Hanania (CB 116.9) is subsequently explained by the Tribunal as being a reference to the number of discrepancies between the applicants’ various claims (a matter on which it did rely). The Tribunal refers to those discrepancies as the various statements made by the applicants. It is clear that the Tribunal was referring to statements concerning the name of the Islamic group, and the applicant husband’s different accounts of his dealings with the group. I cannot see that the Tribunal's decision turned on the applicant husband’s statement as to the leader of the group or indeed any information that the Tribunal obtained from a third source regarding the name of the leader of the group. In this regard therefore, I cannot see that any obligation pursuant to s.424A(1) was imposed upon the Tribunal.

5. As I set out above, following the hearing, but before Judgement could be handed down in this matter, the Full Federal Court handed down its decision in SZEEU, where the Full Court held that it was bound to follow Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679. The affect of this is that the Tribunal is required to comply with s.424A(1) of the Act, where information provided in an applicant's original application for a protection visa would be “the reason or part of the reason” for affirming the decision under review as provided for in s.424A(1). Given this, and given the matters discussed above, I gave both parties the opportunity to make further written submissions. The respondent filed further written submissions. Nothing further has been filed by the applicants.

6. Ms. Wong for the respondents submitted that the Tribunal did refer in its decision record to a written statement annexed to the applicants’ original application for a protection visa, and this was the reference made in the Tribunal's decision record at CB 117.3 being the evidence that the applicant husband gave, concerning the name of the group from which he claimed to fear harm. Ms. Wong submitted however, that the Tribunal did not “attach great significance” to the inconsistency between the applicant husband’s written statement submitted to the first respondent’s Department, and the information given at the hearing (CB 117.4). This was consistent with the concession made earlier at the hearing before me by Mr. El-Hanania that the Tribunal had noted that the applicant husband's original statement had been translated by an employee [“the girl”] in his solicitor’s office and that she was not an accredited interpreter and that the Tribunal therefore did not attach great significance to this. 

7. Whatever this situation however, Ms. Wong submitted that the Tribunal's decision was otherwise sustainable on the basis that the Tribunal made a separate and independent finding that there was no credible evidence to suggest that the authorities in Egypt either did, or would, fail to take reasonable steps to protect the applicants and their son from harm, or that they would be unable or powerless to act simply because the source of the harm was a terrorist group (see generally CB 121). The submission was that in making this finding the Tribunal acted almost exclusively on the basis of independent country information (which the Tribunal was not under any statutory obligation to put to the applicants pursuant to s.424A(1)), and that the Tribunal did not refer to any of its previous findings regarding the veracity of the applicants’ claims made for refugee status in making this finding. The submission was that such a finding constituted “a basis for the Tribunal's decision which can be seen to be entirely independent of the failure to follow s.424A” and therefore warrants the withholding of relief. She relied in particular on the SZEEU at [233] and [255] per Allsop J., and VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33] per North J:

   “As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”

   This was followed and applied by Hely J., in SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 [12] and [17] and Heery J., in MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13], and cited with approval by one member of a Full Court in VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22].

8. The critical issue therefore, is that if the Tribunal breached the requirement of s.424A (as understood in the context of SAAP) in relation to one ground upon which the decision was made, whether there is one or more other grounds on which the decision was based, which cannot be, or are not, impeached. That is, was there another separate basis, or bases, upon which the decision may be supported? Ms. Wong’s submission was that the Tribunal decision was separately sustainable on the basis of the Tribunal’s independent finding that there was no credible evidence to even suggest that the authorities did or would fail to protect the applicant husband and his family.

9. In relation to the Tribunal’s findings on inconsistencies and omissions in the applicant’s evidence which led it to have concerns about the applicants’ evidence:

   1)The Tribunal relied on the discrepancies between the applicant husband’s identification of the Islamic extremist group in three different ways, as variously expressed in the written statement to the respondent’s Department, at the first, and second hearings before it (CB 117.3).

   2)The Tribunal’s decision record reveals that it did “not attach great significance” to the discrepancy between the written statement and what was said at the hearing in this regard. Although expressed as a discrepancy to which it did not attach great significance, there is a difference, in my view, between “not attaching great significance” and assigning “no significance”. I cannot accept that a finding expressed as being based on an issue that was “not of great significance”, is the same as being of no significance. In this regard therefore the Tribunal in part relied on information that was not provided for the purposes of review. It was provided to the respondent’s Department. This is information for the purposes of s.424A(1) and is not caught by the exemption in s.424A(3)(b). I am of the view that in light of the relevant authorities this particular finding does reveal jurisdictional error on the part of the Tribunal.

   3)Ms. Wong's submissions were silent in relation to another part of the Tribunal's decision record which relied on information provided by the applicant husband in his written statement attached to the protection visa application. In its decision record (at CB 119.3) the Tribunal, in dealing with the veracity of the applicant husband’s other claims relating to the Islamic group, gave as the example which led it to also doubt the “veracity of his other claims”, that the applicant husband did not mention in his written statement the claim, made subsequently at the hearing, that he had taken a suitcase containing documents, gold and arms belonging to the group to the police a day before he left Egypt. The Tribunal did not accept the applicant husband's explanation given at the hearing for this omission, given that the applicant also claimed at the hearing that this particular incident resulted in the most immediate danger to him because the terrorist group would have then viewed him as an informer. This finding clearly went to reinforce the Tribunal's doubt about the veracity of the applicants’ claims. The Tribunal also rejected the applicant husband's assertion that he found a suitcase containing documents, gold and arms, on the basis that it could not accept that such a terrorist group would keep documents and valuables in a grave, or a cemetery, or that the applicant would be shown these items in the circumstances that he had put forward. It found that this incident did not take place. Nonetheless, the issue of the discrepancy between the written statement to the respondent’s Department, and the applicant husband’s subsequent statement at the Tribunal hearing, is an element that is a part of the reason for the Tribunal's doubt about the applicants’ claims, and ultimately a part of the reason for its decision. This would in my view reveal jurisdictional error on the part of the Tribunal.

10. However, I accept Ms. Wong's submissions that there was a separate and independent finding by the Tribunal relating to adequate state protection being available to the applicant and his family and that this would warrant the withholding of the relief sought by the applicants. In fact, the Tribunal found that when the applicant wife reported the incidents that had occurred to her, which the Tribunal largely accepted as having occurred, that the police prepared reports and investigated, and that it was not surprising that the police may have been unable to identify the perpetrators of the incidents given the circumstances put forward. The Tribunal found that this did not lead to the conclusion that the police failed to provide effective protection as that term is understood in the context of the Convention. The Tribunal clearly turned its mind to this issue and found that in this case there was no credible evidence to suggest that the authorities either did, or would, fail to take reasonable steps to protect the applicant and his family from harm, or that they would be unable or powerless to act. It further found that the government in Egypt does not condone or tolerate the activities of such extremist groups (see generally CB 120.8 to CB 121.4).

11. In any event in the case before me, as set out below, the application to this Court is dismissed on the basis of unwarrantable or unexplained delay as explained below. In seeking relief from this Court in relation to the Tribunal's decision and in the exercise of the discretion relating to the relief sought by the applicants such refusal can be made without reference to the merits of the claims for judicial review contained in any such application, and even in the face of jurisdictional error being evident in the Tribunal decision.

12. Mr. El-Hanania also put forward as a ground of complaint that the Tribunal breached the requirements of s.91R(1) and (2) of the Act. Given that the Tribunal decision was made on 13 December 2000 and handed down on 11 January 2001, Mr. El-Hanania was unable to explain how s.91R could be of assistance to the applicants given that this section did not become operational until 1 October 2001, well after the Tribunal's decision [subdivision AL of the Act, of which s.91R is part was inserted by Act 131 of 2001]. On this particular complaint therefore the applicants would not succeed.

13. However when pressed on this issue Mr. El-Hanania went on to submit that the real complaint by the applicants was based on the way that the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 set out the test for “persecution”, and in particular he referred me to McHugh J. at [11]:

    “The Convention and the Protocol do not define the words "being persecuted" in Art.1A(2).  The delegate was no doubt right in thinking that some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution.  When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some  significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.”

1. Mr. El-Hanania submitted that this case is authority for the proposition that an applicant with a real chance of persecution was a refugee. He then submitted that in its decision record (CB 120) the Tribunal accepted that the applicant wife may have experienced a number of the incidents, and that this was sufficient to satisfy the “test set out in Chan”. His argument was that given the “circumstances there” [meaning what had occurred to the applicant wife on her return to Egypt], there would be more than a “50% chance at the very least that the applicant wife and child would fear persecution”. It is clear that the Tribunal did consider the claims put forward by the applicant wife, and indeed accepted (CB 120.2) that she had experienced some incidents upon her return to Egypt after the birth of her child. The Tribunal accepted that she had been threatened on the phone, that acid had been sprayed on her, that her car had been forced off the road and that her father’s house had been broken into. But ultimately the Tribunal, in a finding that was open to it on the material before it, found that it could not be satisfied “on the basis of the credible evidence before it that any harm faced by the applicant wife was directed at her for any Convention reason” (CB 120.6). In the absence of anything further from Mr. El-Hanania, I cannot see that this complaint amounts to anything more than a challenge to the Tribunal's finding which on the material before it was open to it to make (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). This complaint also does not assist the applicants.

2. Ms. Wong pressed unwarrantable and unexplained delay of just over a year as another basis for the Court to refuse the relief sought by the applicants. In relation to unwarrantable delay, Mr. El-Hanania submitted that the applicant [husband] was under a “pretence” (I took this to mean a mistaken apprehension) that his previous solicitors had taken steps to file an application complaining about the Tribunal's decision, and that in relation to the period of the “one year delay” (being the period between the filing of the Notice of the Discontinuance of the matter before the Federal Court and the application before this Court) it was not until the applicant [husband] had been located by the first respondent's Department and had been taken to the Villawood Immigration Detention Centre (this occurred sometime in 2005) that he realised that his former solicitors had not filed the application to this Court. Further, that following a period of about “five or six weeks” after he had been located at his mother's house and taken to the Villawood Immigration Detention Centre, the applicant (husband) had given instructions to his then solicitors to file an application. That this was not “followed”, and that the applicant only became aware of this once he had retained the services of “new solicitors”.

3. Ms. Wong submitted that in looking at the evidence that was tendered to the Court, and in particular looking at the paragraphs that were admitted (subject to her comments) that they did not support the submissions made by Mr. El-Hanania. She explained this by submitting that of the relevant paragraphs pressed by Mr. El-Hanania in the applicant husband’s affidavit sworn on 15 November 2005 (paragraphs 14, 15, 16, 18 and 19) she argued that only paragraphs 18 and 19 could be the source of evidence regarding the explanation for delay (that is the delay for the now agreed period), and that these paragraphs do not indicate that instructions were given for the filing of this application, when those instructions were given, or whether the applicant husband followed up on the instructions to make sure that they had been carried. She argued that there was very little admissible evidence before the Court as to the reasons for the delay particularly as to that relevant period of delay that had been agreed between the parties (since the filing of the Notice of Discontinuance). Ms. Wong additionally submitted that if “one year” had been the total period after the initial receipt of the Tribunal decision, then she may have argued that possibly a more “lenient” approach may have been taken by the respondent in all the circumstances. But her submission was that the Court should view this one year's delay as being a delay in circumstances where already over 3 years (albeit now explained) had elapsed before the beginning of the one year delay now relied upon. In those circumstances the applicants should have been under “some sort of burden” to get the proceedings on foot as quickly as possible. She emphasised that this delay of one year is unexplained, and in the sense explained above, also overdue.

4. The applicants have come to this Court seeking orders that the Tribunal's decision be set aside, or quashed, and that the application for review be returned to the Tribunal for reconsideration. The applicants also appear to be seeking orders prohibiting the first respondent from acting upon, or giving effect to be the Tribunal's decision, and an order that the Tribunal review the decision according to law. I have determined that there is error in the Tribunal’s decision as set out above. However, as also set out above I agree with the respondent’s submissions that the Tribunal’s decision is nonetheless sustainable on the basis of a separate and independent finding to support the refusal of the protection visa. As I have also stated, I refuse the relief sought by the applicants on the basis of unwarrantable delay in making the application to this Court. A delay that remains unexplained.

5. It is well established that such relief as the applicants seek is discretionary. It is clear that 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. The 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 & 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. Further in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 the High Court confirmed that the constitutional writ of prohibition is discretionary, and held that prohibition and mandamus should issue in that case. At [53] Gaudron and Gummow JJ. said:

   “The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions" [134] . The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.”

6. Further I note that in SAAP the majority found (essentially) against the Tribunal in circumstances where the Tribunal failed to comply with a mandatory provision contained in Division 4 of Part 7 of the Act. While the majority found the Tribunal’s failure in that case had been a breach of the obligation to accord procedural fairness, and that therefore there was jurisdictional error, all allowed for the possibility that the exercise of the discretion to withhold relief is a possibility, (but found that there was no such reason evident in the case before them to do so):

   McHugh J., at [80] said:

   “The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.” (Citations deleted)

   Hayne J. at [211] stated:

   “For the reasons given earlier, the decision reached by the Tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way…”

   Kirby J. in dealing with the discretionary issue said at [174]:

   “I also agree with Hayne J that such submissions as were advanced for the refusal of relief on discretionary grounds are unconvincing and should be rejected.”

   In SAAP those submissions primarily concerned issues of procedural fairness arising out of the particular circumstances involved in that case. There was no issue apparent in relation to unwarrantable delay, or acquiescence, or unclean hands on the part of the applicant. That distinction is clearly evident in the case before me where the respondent presses unwarrantable delay, and the applicants’ own actions as a basis for refusing the relief sought.

7. In this case before me the agreed period of delay is just over one year. The applicant husband's evidence, although of a very general nature, can be seen to assert, that he generally left the conduct of his immigration status to his former solicitor (paragraph 16 of his affidavit). In context however, the matters asserted in paragraph 16 could relate only to the conduct of the matter before the Tribunal, and not to the relevant period of delay in bringing the current proceedings following the Tribunal’s decision. This is particularly so looking at the sequence of what is contained in paragraphs 14 and 15 and then following in paragraph 17 which refers to events on or around December 2000, a time well before the period of the now claimed delay. Further, paragraph 18 asserts that at some time during 2005, the applicant was “surprised” to learn that his immigration status was “unlawful”, and in paragraph 19 refers to his current solicitor taking action in securing him a “Bridging Visa E” (relating to his release from immigration detention). Other than the general (and with reference to the relevant period of delay – vague) assertion that matters have generally been left to his solicitors, there is nothing in the applicant husband's evidence to specifically address the issue of the failure to file an application complaining about the Tribunal's decision in a timely manner from the time of the discontinuance of the previous litigation before the Federal Court. Paragraph 16 clearly focuses on the applicant’s immigration status, and in the circumstances of how the affidavit is drafted, relates to a period prior to December 2000. The paragraphs relating to the year 2005 (paragraphs 18 and 19) seem to be focused on his unlawful status, and action taken on his behalf by
   Mr. El-Hanania to regularise his immigration status and to obtain a Bridging Visa E for him to serve his release from Immigration detention.

8. Mr. El-Hanania’s submissions on this point were not helpful. At the one point in the hearing (following the production of the Notice of Discontinuance by Ms. Wong) I granted a short adjournment to enable him to obtain further instructions from his client. On resumption, he submitted that his client “was apparently a part of this class action” and agreed with Ms. Wong that the relevant period in respect of which he would need to explain delay was “a period of one year”. At a point subsequent in the hearing when dealing specifically with the explanation for the delay he submitted that the applicants were represented by two sets of solicitors prior to his obtaining instructions, and that they knew nothing of what was relevantly done on their behalf. Yet he also submitted that in relation to the one year delay (from Notice of Discontinuance in Federal Court to the application in the Federal Magistrates Court) the applicant [husband] was expecting “that it would be taken care of”. That is, that his solicitors would file proceedings in Court “within the period that is permitted by the Act in relation to it”.

9. These submissions are really unsupported by any real evidence. Further, a large part of the submissions are unsupported by the applicant’s affidavit. Nor has the contradiction referred to above been explained. In the absence of any other evidence, I cannot accept what is no more than a vague assertion by the applicant husband (and through his legal representative) that in the first instance a firm of solicitors would file an action in the Courts on behalf of the applicants, that they would then subsequently file a Notice of Discontinuance (and I note that the Notice of Discontinuance makes reference to the applicants paying the respondent's costs at a figure to be agreed), and that solicitors would act in such a way without at the very least some basic instruction from the applicants. While Mr. El-Hanania made some references to the quality of representation received previously by the applicants, I cannot accept, in the absence of anything else, that solicitors as officers of the Court would act in the way now asserted, or implied, by the applicant (noting as well that the applicant's affidavit is not directly focused at least in paragraphs 18 and 19, on the issue of filing an application before this Court, but appears to be focused on the issue of his lawful status, or otherwise, in Australia).

10. The delay in filing the application to this Court, and prior to
    Ms. Wong’s production of the Notice of Discontinuance the delay presented to Mr. El-Hanania was a delay of well over four years, and would have been obvious to any legal representative. I cannot accept that there was not a reasonable opportunity for the applicant, (subject to everything that I have said above about Mr. El-Hanania's health) to have brought forward clear evidence of any wrongdoing or omissions on the part of his former solicitors as it related to the filing, or rather the failure to file an application such as is now before the Court at least a year earlier. The applicant clearly had some knowledge of the filing of the Notice of Discontinuance. Although it is not clear when he obtained this knowledge, he clearly had such knowledge prior to the hearing before this Court. His evidence in his affidavit does not explain to any degree of satisfaction (at the very least) his failure to pursue his legal representatives in the filing of the application to this Court and generally about his refugee related claims.

11. Further, I accept Ms. Wong's additional argument that the period of one year delay now claimed needs to be seen in the context that the delay that the respondent now relies upon does not immediately start with the notification of the Tribunal's decision. The delay of one year followed a period of some three years from the actual making, and notification, of the Tribunal's decision. It is inconsistent of the applicant husband to assert by way of his affidavit that he knew nothing about his affairs and left them all to the hands of his former solicitor, when clearly a Notice of Discontinuance in relation to proceedings before the Federal Court was filed. I cannot accept in the circumstances of what has been put before me that the applicant husband at least did not know of this Notice of Discontinuance at the time of its filing.

12. Further I do not accept submissions that the applicant husband did not know that he was part of a class action which ultimately ended up before the Federal Court. I also find the implications which
    Mr. El-Hanania has sought to draw from the applicant husband's affidavit (that he knew nothing of his affairs relating to the Tribunal's decision, and subsequent Court action, or indeed his immigration status for a period of over four years) inconsistent with the material in the Court Book before me. The applicants (husband and wife) appear to have pursued their application to the first respondent's Department and the application for review to the Tribunal with some degree of personal involvement. The applicant husband and wife attended two hearings before the Tribunal, and both, from the Tribunal’s account, gave evidence at length. A number of documents were submitted by them for consideration by the Tribunal. Both gave evidence to the Tribunal which, on its face, involved events of considerable personal danger. On the occasion of the second hearing before the Tribunal the applicants attended without their then lawyer and adviser. Mr. El-Hanania’s argument, if nothing else, requires an acceptance that applicants who acted in such a fashion would then cease to even attempt to make any inquiries from their lawyer for over four years as to what was happening with the Tribunal's decision. In any event, the submission (following instructions from his client) that the applicant husband was part of a class action would certainly go against the implication that Mr. El-Hanania sought to draw from the applicant husband's evidence (that he had no knowledge of what was happening). Further, even with the benefit of legal assistance from Mr. El-Hanania nothing has been put forward by, or on behalf of the applicant wife to seek to explain her part in the delay.

13. In all these circumstances there has clearly been just over a year's delay between the applicants filing of a Notice of Discontinuance in the Federal Court in relation to earlier proceedings involving the same Tribunal decision and the filing of the application in this Court complaining (again) about the Tribunal decision. On what has been put before me I accept the respondent's submissions, and find that the delay is unexplained.

14. In all therefore I dismiss the application on the basis that notwithstanding that the Tribunal’s decision contained some error amounting to jurisdictional error, the Tribunal’s decision to affirm the delegate’s decision under review can be sustained on an unimpeachable basis that is separate and independent to the part of the decision record that contains the error. The finding that adequate state protection is available to the applicants stands separate and alone and without error. In any event, even if the Tribunal’s decision could not have been so upheld, I would dismiss the application in exercising the discretion available to the Court as set out above. The application is dismissed.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 15 April 2006