SZGGP v Minister for Immigration

[2007] FMCA 965

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGGP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 965

MIGRATION – Refugee – review of Refugee Review Tribunal decision –social group – “teachers of Islam Jama’ah” – law banning Islam Jama’ah – reasonableness of relocation – independent country information – request pursuant to s.417 of the Act – delay – discretion – no jurisdictional error – application dismissed.

Migration Act 1958, ss.476(1), 417, 351

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
Chen Shi Hai v The Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Hehar v MIMA [1997] 48 ALD 620 at 623 to 624 and [1997] FCA 1427
SZDSC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 217
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231
Abebe v Commonwealth (1999) 197 CLR 510
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491
Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82
Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195
NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84
SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Batuwantudawa,in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684
Re Ruddock; Ex Parte LX [2003] FCA 561
Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266
Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331
Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457
M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24

Applicant: SZGGP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1201 of 2005

Judgment of: Nicholls FM

Hearing date: 1 March 2007

Date of Last Submission: 26 February 2007

Delivered at: Sydney

Delivered on: 26 June 2007

REPRESENTATION

Counsel for the Applicant: Mr. R. Anthony (Direct Access)

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. M. Allars

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

(1) The application is dismissed.

(2) The applicant pay the first respondent’s costs set in the amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1201 of 2005

SZGGP

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 10 May 2005 and amended on 30 August 2005, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 November 1999 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Indonesia who arrived in Australia on 30 November 1997. On 12 January 1998 he lodged an application for a protection visa with the first respondent’s Department. On 31 March 1998, a delegate of the first respondent refused to grant a protection visa to the applicant. On 28 April 1998 the applicant sought review of that decision.

2. The applicant’s claims to protection are contained in a letter from the applicant’s representatives dated 8 January 1998 (reproduced at Court Book (“CB”) 1 to CB 4), in his application for a protection visa (CB 5 to CB 30), and in supporting submissions dated 23 April 1998 (CB 45 to CB 46) sent to the Tribunal by his then representative with his application for review (CB 47 to CB 50). The applicant’s representative submitted further supporting documentation to the Tribunal which was received on 15 April 1999 (CB 55 to CB 124). The applicant attended a hearing before the Tribunal on 28 October 1999. The Tribunal's account of what occurred at the hearing is contained in its decision record (CB 133 to CB 144).

Applicant’s claims

1. In essence, the applicant claimed to fear persecution in Indonesia due to his involvement with “Islam Jama’ah” and its later (and current as at the time of the Tribunal's review) iteration “LDII”. The applicant claimed he was involved as an activist within this group as a teacher at a number of religious schools. He claimed to fear harm, in particular, from “local people” who practiced the Islamic faith in ways different to the applicant's group. He also claimed to have been arrested in October 1993, and that he was asked to present himself to a local military post in 1995.

Tribunal’s reasons

1. The Tribunal’s “Findings and Reasons” are reproduced in its decision record (at CB 140.4 to CB 143.7). The Tribunal found:

   1)It accepted that the applicant had been an adherent of Islam Jama’ah and was therefore, at the time of the Tribunal's decision, a member of LDII (CB 140.7).

   2)It further accepted he had been employed as a teacher of religion from 1990 in Indonesia and that he had been actively involved in LEMKARI, a previous incarnation of LDII (CB 140.8).

   3)It also accepted that he had been briefly detained in 1993 and asked to present himself for questioning by the local military post in 1995 (CB 140.9).

   4)However, that from the applicant's own evidence, neither of these latter two incidents resulted in charges being laid against him or in any ongoing adverse consequences (CB 140.9).

   5)It accepted that Islam Jama’ah had been banned in Indonesia in 1971, but on independent evidence available to it, found that Islam Jama’ah “effectively continued to exist”, firstly in the guise of LEMKARI and then in the guise of LDII (CB 140.10).

   6)On independent evidence available to the Tribunal, LDII was a “legal” organisation and that members could practise their faith with relative safety (CB 141.1). Further, that this was a finding which was consistent with the applicant's own evidence that he did not claim to have been prevented from practising his religious beliefs or that he was restricted in his practice of them in any way (CB 141.1 to CB 141.3).

   7)The two incidents to which the applicant had referred had not resulted in any “ongoing adverse consequences” (CB 141.3).

   8)There was nothing in the evidence before it to suggest that the Indonesian government was encouraging attacks on individuals or mosques, or that it was powerless to prevent such attacks occurring (CB 141.10 to CB 142.1).

   9)The chance that the applicant would face physical harm at the hands of local people because of his religious beliefs was “remote and insubstantial” (CB 142.5).

   10)It considered that the applicant would be able to return to his home area in which he had lived and worked for the two years before coming to Australia and would be able to continue to be involved in LDII activities without incurring harm (CB 142.5 to CB 142.6).

   11)In relation to the applicant's claims that he had been involved in religious activities in Australia, the Tribunal was not satisfied that he would be harmed if he returned to Indonesia because he was involved in any religious activities in Australia (CB 142.7).

   12)The skills acquired by the applicant over the years would enable him to find employment in an LDII religious school outside of East Java (CB 142.9).

2. In all, the Tribunal accepted that the applicant was a teacher of religion and a member of LDII and that he was briefly detained in 1993 and asked to present himself for questioning in 1995 (CB 143.1 to CB 143.2), but did not accept that the Indonesian authorities had any ongoing interest in him as a result of these incidents or that they had any interest in him as at the time of its decision. Nor was the Tribunal satisfied that there was a real chance that he would face harm at the hands of the local population in his home area. Further, it was not satisfied that he would be denied “state protection” in the event he were subjected to attack. Even further, it was satisfied that he could reasonably relocate within Indonesia if he feared harm at the hands of “local people” (CB 143.3). 

Applicant's grounds

1. By way of amended application filed in this Court on 30 August 2005, prepared and settled with the assistance of Counsel, the applicant, with particulars, sets out the following grounds:

   “(1)The second respondent constructively failed to exercise its jurisdiction by failing to deal with the applicant's claim raised in his original visa application and implicitly during the hearing before the second respondent, that there was a particular social group, namely teachers of Islam Jama’ah and that as a member of that group he had a well-founded fear of persecution if he returned to Indonesia…

   (2)The second respondent committed jurisdictional error of law by failing to consider whether the law made by the Indonesian government in 1971 banning Islam Jama’ah was a law applied in a way that was discriminatory in itself for reasons of religion, and whether the applicant's fear of punishment by the Indonesian authorities for the breach of this law could, of itself, give rise to well-founded fear of persecution for a Convention reason…

   (3)The second respondent committed jurisdictional error of law in finding that if the applicant feared being harmed by the local people in East Java, it would be reasonable for him to move to another area of Indonesia when the evidence was that the applicant would still not be able to openly practise his religious beliefs due to a legally enforced ban on the practice of his Islam Jama’ah throughout Indonesia…

   (4)The second respondent committed jurisdictional error of law by failing to abide by section 424(1) of the Act in that it failed to consider independent evidence that it had got for itself…

   (5)The second respondent constructively failed to exercise its jurisdiction by misconstruing independent evidence that it had obtained for itself and also the clear evidence of the applicant during the hearing.” 

2. For the applicant, I have before me:

   1)Written submissions filed on 15 February 2007.  

   2)A transcript (“T”) of the Tribunal hearing held on 28 October 1999, filed on 15 February 2007 (this was not provided to the Court in any evidentiary form or context, but no objection was taken to the Court considering it).

   3)The applicant’s affidavit of 27 February 2007, filed on 1 March 2007 (no objection was taken).

   4)The applicant’s further submissions filed on 8 March 2007.

3. For the respondent, I have before me:

   1)Written submissions filed on 20 February 2007.

   2)Further written submissions filed on 15 March 2007. 

4. At the hearing before me, Mr. R. Anthony appeared for the applicant and Ms. M. Allars appeared for the first respondent.

Ground one

1. The applicant’s first ground of complaint appears to contain two related elements. The first, is that although the applicant based his claim on membership of a particular social group, the Tribunal did not deal with his claim in this way. Mr Anthony submitted that in his protection visa application, and by implication during the hearing before the Tribunal, the applicant raised the existence of a particular social group, “teachers of Islam Jama’ah” and the applicant’s claims were that as a member of this group, he had a well-founded fear of persecution if he returned to Indonesia.

2. The applicant's complaint now, is that while the Tribunal accepted that the applicant was an adherent of Islam Jama’ah and a teacher of religion, it did not consider whether there was in existence, a particular social group, being the teachers of Islam Jama’ah, and whether the applicant as a member of that group had a well-founded fear of persecution if he returned to Indonesia. The applicant relies on Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26.

3. The second element of the applicant's complaint is that the Tribunal failed to deal with the claim that as a teacher of Islam Jama’ah, he would be safe to practise his faith. That is, that the Tribunal did not deal with a claim, or an integer of a claim, put forward by the applicant. The applicant relies on Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27.

4. Mr. Anthony submitted that the essence of the complaint is that the applicant stated that he was that he was a teacher, and an activist, and that he was part of a particular social group, and that the Tribunal did not deal with this claim in the way that it was supposed to deal with it.

5. Mr. Anthony relied on the following in support of this ground:

   1)That in a submission made by the applicant's then representative on 8 January 1998 which accompanied the applicant’s application for a protection visa, the representative stated amongst other things (reproduced at CB 3.3):

   “We would also submit that the applicant can be seen to be a member of a social group, namely teachers of unorthodox Islam, and has suffered persecution by reason of this membership. In this regard, we refer to Chief Justice Black’s statements in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401. At page 405 he states that:

   “…a particular social group connotes a cognisable group in a society; cognisable to the extent that there may be a well founded fear of persecution by reason of membership of such a group.”

   2)That the Minister’s delegate recognised the claim arising from his being a teacher of religion, and dealt with an aspect of the claim, even though this claim was rejected as a basis for showing that the applicant was “subject to persecution”.  In the delegate’s decision record (reproduced at CB 43.7):

   “In support of his application, the applicant has submitted a translated extract from a police record as evidence of his arrest in December 1993 (B:1, folios 32-33). I do not consider this evidence to adequately indicate the reason why the applicant was arrested. It states that the accused was a “Teacher of Religion", but does not specify that this was the reason for his arrest.  In contrast to the claim made by the applicant that he was previously arrested on 1October 1993, this extract merely refers to a police report of that date.”

   3)That claim was referred to in a submission to the Tribunal on 23 April 1998.  The applicant’s then representative, amongst other things, also submitted: 

   “The fact that my client taught a particular type of religion led to his imprisonment on a number of occasions” (CB 46.3)

   This was said to be linked to:

   “My client has sought to corroborate the serious claims as best he can” (CB 46.5).

   4)With reference to the transcript of the hearing conducted by the Tribunal with the applicant on 28 October 1999:

   (a)At T12 to T13, the applicant articulated an aspect of his claim as:

   “Q82What other things could happen to you?

   A(Int)The society or the people would just take me by force, kidnap me in other words,    that they would carry out a form of vigilante or local justice and judge me themselves.

   Q83           Why would this happen ?

   A(Int) Because the people would want to know if I'm a teacher of Islam Jemaah and as a teacher of Islam Jemaah, the second leader.

   Q84 Is that the only reason that people could be interested in harming you ?

   A(Int)         Yes

   Q85 When you say people and society, you just mean local people in the village areas rather than the police?

   A(Int)Especially the people.  The police and the military are influenced by the people or society and they could be incited to arrest me.

   Q86Have you done anything wrong that would lead the police or military to arrest you?

   A(Int) No, but the police and military would be after me after being incited or pushed to do so by the people.

   Q87 So you haven't actually done anything illegal then.

   A(Int) As for breaking the law the police could say that I was causing unrest or discord. And the people would want the police to see me as an activist and a teacher of Islam Jemaah, an organisation which is banned by the government”

   (b)     That the applicant generally repeated (at T17 and T18) that he was a teacher at a religious school in Mojokerto and emphasised in reply to the Tribunal's questions that there was "quite a large chance" that he would be arrested if he returned to Indonesia because “the worst effect and the greatest danger comes from the local people”. Further, the applicant stated, “wherever I go I’ll be in danger as a teacher of Islam Jemaah and as an activist of Islam Jemaah, because I can't simply give up my actions as a teacher or my activities as a teacher of Islam Jemaah and as a leader, as an activist, it's a part of my life”.

6. I understood the Minister’s position to be that, while no such relevant claim was made in the original visa application form itself, claims were made in the accompanying letter from the applicant’s lawyer that the applicant had a well-founded fear of persecution on the grounds of religion, political opinion and membership of a social group, and the social group was described as “teachers of unorthodox Islam”. The Minister asserts, however, that the applicant did not claim persecution as a member of a particular social group in his application for review.  In particular, he did not claim that religious teachers who are also members of LDII are generally harmed by local people in Indonesia or that the Indonesian authorities had a practice of withdrawing protection from persons who belonged to that group.

7. Further, the Minister’s submission was that before the Tribunal, the applicant's claim to fear persecution was that local people would incite the police to arrest him. He did not claim that local people generally discriminated against those who are religious teachers and members of LDII. Nor did he claim that the police withdrew their protection from people who were religious teachers and members of LDII, nor did they discriminate against them.

8. In essence, the Minister submitted that the Tribunal properly considered the claim as presented by the applicant in the application for review, his submissions and the evidence presented by the applicant at the hearing. The Tribunal was not required to consider the claims on a basis which the applicant “no longer advanced”.

9. Even further, the Minister submitted that the applicant's claims were dealt with and subsumed in the “general” findings made by the Tribunal, where it found that the chance of the applicant facing harm at the hands of local people because of his religious beliefs was “remote and insubstantial” (CB 142.5).

1. In my view, the applicant did claim initially (by way of his adviser’s submissions on 8 January 1998) that he was a “member of a social group”, “teachers of unorthodox Islam” and that he “taught a particular type of religion” (by way of his adviser’s submissions on 23 April 1998).

2. However, ultimately at the hearing before the Tribunal, the applicant plainly asserted that he feared harm if he returned to Indonesia because local people would be hostile towards him and treat him as an enemy because he was both a teacher and a leader of Islam Jama’ah. Further, that the local people would push the police and military to harm him, as he would be seen as an “activist and a teacher of Islam Jama’ah”.

3. In recounting the applicant’s claims, the Tribunal reported that the applicant had stated that he had qualified as an Islamic teacher and had worked as an Islamic teacher in three different locations, and that his work as an Islamic teacher was that he taught Islam Jama’ah which was “prohibited” by the government (CB 136.5 to CB 136.7). In its own account of what occurred at the hearing (at CB 137.6 to CB 139.4), the Tribunal noted that “consistent with the information in his protection visa application form” the applicant stated that he was teaching in a number of different locations, that his “last position in Indonesia was as a teacher of religion in a religious school”, and he would be harmed by local people because “he is a teacher of Islam Jama’ah” and the local people would “incite the military to arrest him”. Further, that the police and military could say that he was causing unrest in the local community”. In its “Findings and Reasons”, the Tribunal noted that the applicant claimed to fear persecution because of his association with Islam Jama’ah, now known as LDII, and that “he is particularly at risk from local people” (CB 140.7).

4. The Tribunal did deal with the applicant's claim as it related to his being a member of Islam Jama’ah, and its various iterations (LEMKARI and then subsequently LDII). In that regard, it found that members of LDII could practice their “faith” with “relative safety” (CB 141.1).  I do not agree with Mr. Anthony that the applicant either expressly, or impliedly, raised his membership of a particular social group at the hearing before the Tribunal as being relevant to his claim.  The applicant’s evidence at the hearing before the Tribunal was plainly that he feared harm from “local people” because of his teaching of Islam Jama’ah and in that sense, being a leader of Islam Jama’ah. I can only agree with Ms. Allars that on any plain reading of the transcript of the hearing and on what was generally before the Tribunal (including the submission made by the applicant's adviser attached to the protection visa application), it cannot be said that the applicant's claim (by the time of the hearing before the Tribunal) was that he would be treated by local people in the same way as they generally dealt with other teachers of Islam Jama’ah.  His perspective, and his view of the fear, was that local people would incite the police to arrest him, or otherwise harm him, albeit because of his religious teaching.   

5. There is nothing in the material before the Tribunal that indicates that there was any aspect of the applicant's ultimate claim that religious teachers, who are also members of LDII who teach Islam Jama’ah, are generally harmed by “local people” in Indonesia. Any plain reading of the applicant's answers to relevant questioning shows that his fear was what would happen to him. Distinctly, not what would happen to him as a member of a particular social group. The context of his presentation was harm he feared as an individual, not as a member of a particular social group. This is what the Tribunal dealt with.  

6. Further, the Tribunal dealt with this aspect of the applicant's claims when it found that in relation to two incidents on which the applicant relied (that is, his claim to have been detained in 1993 and subsequently expected to report to a “military station” in 1995 for questioning), the applicant was not charged with any offence, and nor was there any indication that he was of any ongoing interest to the Indonesian authorities up until the time the applicant left Indonesia in November 1997. The Tribunal found that there was no indication that he was of any ongoing interest to the Indonesian authorities in this subsequent period.

7. Even further, in relying on the applicant's own evidence at the hearing the Tribunal found that he was free to practise his religious beliefs, to be a member of LDII, and importantly, that he was free to work as a teacher of religion, given that his evidence was that he had worked in this capacity at three different locations. In relation to the role played by “local people” in the applicant's fears, the Tribunal found that there was no evidence before it to suggest that the Indonesian government was encouraging attacks on individuals such as the applicant, nor was there evidence that it was powerless to prevent such attacks from occurring (CB 141.10). Ultimately, on this issue, the Tribunal came to the conclusion that the applicant would not face physical harm at the hands of local people because of his religious beliefs (CB 142.4). In the Tribunal’s conclusion, such a possibility was “remote and insubstantial”(CB 142.5).   

8. In my view, the Tribunal ultimately identified the applicant's claims as put by the applicant himself. The Tribunal accepted that the applicant was a teacher of religion, that he was a member of LDII, that he had been briefly detained in 1993, and was asked to present himself for questioning in 1995.  In my view, this represents accurately, and deals with the sum total of, the applicant's claims. The Tribunal did not accept that the Indonesian authorities had any ongoing interest in the applicant as a result of these incidents, nor did it accept that there was a real chance that he faced harm at the hands of local people. Further, it found that it was not satisfied that he would be denied state protection. Even further, it found that he could reasonably relocate away from East Java if he feared harm there as claimed from “local people”.

9. In written submissions filed subsequent to the hearing on 8 March 2007, the applicant made reference to SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448 (“SZAIX”). Mr. Anthony sought to draw a parallel between what was found in the circumstances relevant to that case, and what was subsequently found with the circumstances before the Court now.  I do not agree, given what I have already set out above, that the applicant's claim to membership of a particular social group was expressly articulated before the Tribunal. Nor do I agree that it “clearly arose from the materials before the Tribunal” such as to have caused the Tribunal to have dealt with the applicant's claims as found by the Court in SZAIX.

10. I note subsequent submissions made by Ms. Allars on behalf of the Minister. I agree with her that in SZAIX, the applicant expressly made a claim that she had been persecuted because she was a member of particular social group (“ethnic Chinese women in Indonesia”). The Tribunal understood that claim to have been made in that way. Where the Tribunal fell into error in that case was when it failed to consider, relevantly, the issue of state protection, and whether there was a failure on the part of the Indonesian authorities in that case to provide protection to the group of ethnic Chinese women in Indonesia because of anti-Chinese racism. Such failure led to the authorities withdrawing protection to members of this particular group, such as to bring the issue within a Refugees Convention reason.  In SZAIX, what the Court (per Madgwick J. at [50]-[52]) found, was, even if the applicant had not expressly raised such a claim, that the information before the Tribunal showed that this was the approach of police at the local level. That is, it was expressly raised in the materials before the Tribunal.

11. I cannot see that this circumstance applies in the case before the Court now. Specifically, the Tribunal dealt with the issue of the withdrawal of protection by the authorities in the context of the applicant being a teacher of a religion and a member of LDII (that is, in the context of being a teacher of Islam Jama’ah and “active in this capacity”). In particular, it dealt with the issue of the two occasions when the applicant claimed to have come to the notice of the authorities, and found that there was no evidence before it that the Indonesian government was powerless, or unwilling, to extend to him (in the context of his claims) the same degree of protection that it would accord to any other Indonesian national (CB 142.3). In all, therefore, the applicant's first ground does not succeed. 

Ground two

1. The applicant's second ground is that the Tribunal failed to consider whether the law made by the Indonesian government in 1971 banning Islam Jama’ah was a law that was applied in a way that was discriminatory in itself for reasons of religion.  That is, whether this was a law of general application and such that the Tribunal, in not considering this question, fell into jurisdictional error.

2. The applicant's complaint in this regard is that the Tribunal accepted that the applicant was an adherent of Islam Jama’ah, and a member of LDII (the current “guise” of Islam Jama’ah), and further accepted that it had been banned in Indonesia in 1971.  The applicant's complaint is that the Tribunal failed to consider the nature of the relevant law and whether it was a law of general application, or a law targeting, or applying only to persons practicing a particular religion, and whether it therefore resulted in discriminatory treatment.  The applicant relies on Chen Shi Hai v The Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [19] to [21], and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”).

3. The parties agreed that persecution cannot arise by reason of the non-discriminatory application of a law of general application (see McHugh J. in Applicant A, at 258, for the proposition that enforcement of a generally applicable criminal law does not ordinarily constitute persecution). However, the applicant's position is that the law passed by the Indonesian government in 1971 banning Islam Jama’ah was not such a law.

4. Clearly, on the material before it, the Tribunal accepted that Islam Jama’ah was banned in Indonesia in 1971 because of conflicts between its followers and other Muslims (CB 139.4). Further, the Tribunal noted independent evidence before it that stated after being banned, Islam Jama’ah changed its name to LEMKARI (and was indeed affiliated with the then ruling party in Indonesia). Then subsequently, as a result of tensions that again arose between its followers and other Muslims, changed its name to LKDI, and then changed its name to LDII.  Further, it noted that since 1989, followers of LDII had been relatively free to practise their faith, and that this was particularly the case outside of East Java. The Tribunal recorded that this was discussed with the applicant during the hearing and that the applicant agreed as to its accuracy, with the exception that his understanding was that LEMKARI changed its name directly to LDII (see generally CB 139.4 to CB 139.10).

5. I agree with Ms. Allars’ submission that, in the circumstances of the case before the Court now, the Tribunal was not required to consider the issue of the discriminatory application of a law of general application, and whether it may constitute persecution on a Convention ground.  The relevant law, that is, the law banning Islam Jama’ah, was made in 1971, and applied to Islam Jama’ah. Whether such a law, as a law of general application, applied in a discriminatory or non-discriminatory way, in my view, ceases to have relevance to the applicant's circumstances given that by the time the applicant commenced employment as a teacher of religion (albeit teaching the tenants of Islam Jama’ah) he was at that time a member of LDII.  In this regard, the Tribunal relied on independent evidence before it which indicated that LDII was a “legal” organisation and that members of LDII could practise their faith with relative safety.

6. Further, the Tribunal found that apart from a brief period of detention in 1993, and a request to present himself for questioning in 1995, the applicant made no claim to have been prevented from practising his religious beliefs, or restricted in his practice of them. The Tribunal confirmed that, in its view, the applicant’s evidence of the hearing before it was that the applicant was free to practise his religious beliefs, to be a member of LDII, and to work as a teacher of religion.  The applicant’s argument now is that the followers of Islam Jama’ah were compelled to continue under the “guise”, ultimately and latterly, of LDII because the law of 1971 continued to have at least some force and effect, and that because of this the applicant was still required to comply with the law of 1971 in order to avoid prosecution or punishment

7. Whether the applicant was required to adopt the “guise” of LDII in order to continue his practise in the beliefs of Islam Jama’ah does not detract from the Tribunal's findings that members of LDII can practise their faith and activities with relative safety. Indeed, the Tribunal's finding was that apart from two incidents which did not have any ongoing adverse consequences, the applicant continued to practise and teach Islam Jama’ah.  This, in my view, effectively and adequately deals with the applicant's claim to fear harm because of his adherence to Islam Jama’ah. What the Tribunal found (whether LDII is a “guise” or otherwise), was that as a member of a legal organisation known as LDII, the applicant was able to continue to practise his faith as an adherent of Islam Jama’ah, and indeed as a teacher of this faith.  Nor, and in this I again agree with Ms. Allars, was there any evidence before the Tribunal that the applicant joined LDII rather than remain in the previous iteration of the organisation as Islam Jama’ah in order to avoid persecution. In short, the 1971 law, on the material before the Tribunal, was in relation to the organisation known as Islam Jama’ah. Adherents of this faith could continue to practise their faith, as members of LDII with no ongoing adverse consequences.  In all these circumstances, I cannot see that this ground succeeds.

Ground three

1. The applicant's third ground is that the Tribunal either misapplied, or misconstrued, the evidence before it in relation to its finding that the applicant could safely relocate to other parts of Indonesia.

2. Mr. Anthony’s submission was that, if the Court were to find in the applicant's favour on either of grounds 1 or 2 (which it does not), then the Tribunal's finding as to relocation was deficient, such that it could not be said to provide an alternate, and independent, basis for affirming the decision under review, should the Minister seek to rely on it. That is, the Tribunal could not have properly carried out its consideration of the issue of relocation without considering all of the circumstances of the applicant. Mr. Anthony submitted these circumstances included the issue of membership of a particular social group, and the issue of whether the law banning Islam Jama’ah was discriminatory in itself, and applied throughout Indonesia. Given what I have found above, this iteration of this particular ground does not succeed. Nor can I see that the Tribunal’s finding on relocation is itself deficient.

3. The issue for the Court in this regard, is whether the Tribunal proceeded in accordance with the “reasonableness” test laid down in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”). The issue, therefore is, did the Tribunal ask itself the question as to not only whether the applicant could relocate to another area of Indonesia outside of East Java, but whether he could reasonably be expected to do so.  What is reasonable, will of course, depend on the circumstances of the applicant's case, and while the Court in Randhawa did not attempt to determine what would be reasonable in all cases, it identified the types of relevant considerations (see Randhawa at 442). Further, the Tribunal's inquiry about relocation needs to be addressed in a practical and commonsense way (see Hehar v MIMA [1997] 48 ALD 620 at 623 to 624 and [1997] FCA 1427).

4. The Tribunal considered the issue of relocation in its “Findings and Reasons” as reproduced at CB 142.8 to CB 143.5. On a plain reading of the Tribunal’s analysis, it found that the applicant was not of any ongoing interest to the Indonesian authorities, and that, as a member of LDII, he was free to practice his faith and to work as a teacher of religion. The Tribunal found further that in relation to the harm claimed to be feared from “local people”, that he would be accorded the same level of protection as that given to any other Indonesian national. In any event, the harm claimed to be feared at the hands of local people in East Java, because of his religious beliefs, was found to be “remote” and “insubstantial”. In these circumstances, it was not necessary for the Tribunal to go on and consider the reasonableness of the applicant’s relocating away from East Java. That it did however, does not of itself reveal jurisdictional error on the part of the Tribunal.

5. The Tribunal clearly understood that it was required to answer this question as to whether the applicant could move to another area of Indonesia away from East Java in the context of whether he could reasonably do so. In finding that he could safely do so, the Tribunal considered independent evidence that indicated that, while there had been some isolated incidents of mob violence against LDII in East Java, that there was nothing to suggest that similar incidents had occurred outside of East Java. It considered the applicant’s own evidence that LDII schools existed all over Indonesia, that he had had a number of years experience teaching in religious schools and had been involved in religious activities in Australia. In these circumstances, the Tribunal found that the skills that he had acquired over the years would enable him to find employment in an LDII religious school outside of East Java. 

6. Specifically, on the issues relied on by Mr. Anthony in submissions, the Tribunal had already found that on the evidence before it, the ban on Islam Jama’ah was not enforced against the LDII and that the applicant would be free to practise his religion outside of East Java. The Tribunal specifically considered the applicant's circumstances as a teacher of Islam Jama’ah and found that he would be able to find employment in an LDII religious school outside of East Java. Further, the Tribunal also took into account the availability of state protection in relation to the applicant, with regard to his capacity to continue the expression of his religious beliefs and his teaching and practice of Islam Jama’ah. That is, it considered the applicant's relevant circumstances as put by the applicant himself that he was a teacher of Islam Jama’ah and active in his membership of LDII.  Implicit in all of this was whether it would be reasonable for the applicant to so relocate. In all, therefore, I cannot see that this ground can succeed.

7. I should further note, that in subsequent written submissions, Mr. Anthony made reference to SZDSC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 217 per Allsop J. specifically at [8], a case not previously referred to by him. It is not clear from these submissions exactly what Mr Anthony seeks to draw from this case in assisting the applicant's case before the Court now. In that case, the Court found that the Tribunal's analysis of the relocation issue was flawed in that it failed to consider whether the applicant in that matter would be persecuted elsewhere in India because of his particular beliefs. As Ms. Allars, correctly in my view, submitted in written submissions (at paragraph 4.2), in the case before the Court now, the Tribunal found in relation to non-state agents that, while there had been isolated incidents of violence (CB 139.8 and CB 141.9 to CB 142.5), such incidents of violence were restricted to East Java and there was no evidence to indicate that such incidents occurred outside of East Java. This reference also does not assist the applicant.

Ground four

1. Mr. Anthony advised at the hearing before the Court that the applicant did not seek to press ground four of the amended application.

Ground five

1. Ground five of the amended application asserts that the Tribunal misconstrued the evidence, or ignored relevant considerations, and made findings for which there was no evidence.  There appear to be a number of aspects of the applicant's complaint under this ground.

2. The applicant relies on the transcript of the Tribunal hearing provided to the Court, and in particular, at T16.5:

   “Q118 The information I have indicates that since 1989 the followers of LDII have been relatively safe to practice their faith.

   A(Int)         That’s not correct.  

   Q119This is the information I have. OK.  I’ll note your theory that that’s not correct.  The information I have indicates that particularly outside of East Java, members of LDII can practice their faith quite safely.

   A(Int)         That’s not correct.”

3. Mr. Anthony submitted that the information to which the Tribunal referred was that reproduced now in the Court book at CB 151 to CB 152. One aspect of the applicant’s complaint is that in the Tribunal’s “Reasons for Decision”, the Tribunal recorded that the independent evidence was discussed with the applicant at the hearing, and the applicant agreed that it was accurate information. This was with reference to what is set out in the Tribunal's decision record, under the heading of “Independent evidence”:

   “This information was discussed with [the applicant] during the hearing. He agreed that it is accurate information, with the exception that his understanding that LEMKARI changed its name directly to LDII.” (at CB 139.10).

4. The applicant complains that this is not an accurate reflection of what occurred at the hearing. Mr. Anthony has sought to present the Tribunal’s report that the applicant agreed with the information that was discussed with him, and contrasts this with the extract from the transcript of the hearing which shows that the applicant did not agree with the information that members of LDII can live safely in Indonesia if they are not living in East Java.

5. Ms. Allars’ response was that what appears at CB 139.10 in the Tribunal's decision record is its report of what occurred at the hearing. In terms of its relevance to findings made by the Tribunal it needs to be seen in light of what the Tribunal subsequently said in its “Findings and Reasons” at CB 140.9. That is, plainly, that the independent evidence on which the Tribunal relied, and with which it said the applicant agreed, was that Islam Jama’ah had effectively continued to exist in Indonesia firstly in the guise of LEMKARI, and then, and currently, in the guise of LDII.  Ms. Allars’ submission was that what the Tribunal was saying was that the applicant agreed with the country information on the history of LDII as being the successor to Islam Jama’ah and that, in essence, what the Tribunal ultimately relied on was that part of the independent evidence relating to the historical evolution of LDII, not that the applicant had agreed that it was safe for the adherents of Islam Jama’ah to be able to live in safety in other parts of Indonesia.  

6. In my view, Ms. Allars’ submission that this is the proper construction of what the Tribunal did, is further supported with reference to other parts of the Tribunal's account of what occurred at the hearing. In particular I note:

   “I asked [the applicant] why he could not move to some other part of Indonesia. I put to him that the independent evidence indicates that there is no problem for LDII members who live outside of East Java.  [The applicant] agreed that LDII exists all over Indonesia but claimed that wherever he went he would be in danger because of his membership of Islam Jamaah” (at CB 138.7).

7. With reference to the transcript, this is an accurate presentation of what occurred at the hearing.  While the Tribunal put to the applicant the nature of independent evidence available to it that indicated there was no problem for LDII members who live outside of East Java, the Tribunal reports that the applicant's agreement was in relation to the evolution of LDII. It is plain that the applicant maintained that, notwithstanding the independent evidence to which the Tribunal had referred, he could not live safely as a member of LDII elsewhere in Indonesia because he would still be in danger outside of East Java because of his membership of Islam Jama’ah.

8. Ms. Allars further submitted that, whether the applicant agreed with the independent information, or not, was immaterial to the factual findings relevantly made by the Tribunal. Further, it was submitted that it is a matter for the Tribunal to properly make findings in relation to the country information and how the applicant's circumstances relate to this. The applicant's agreement, or lack thereof, is not relevant. I agree. The use of country information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC at [11]).

9. In the context of the applicant’s complaint however, the issue remains as to whether the Tribunal properly understood the applicant's claims, such that it can be said that it then properly considered them. In this regard, the applicant's claim was that he could not live safely outside of East Java (nor within East Java for that matter) as an active teacher of Islam Jama’ah which was inherent in, and continued with, his membership of LDII.

10. The Tribunal clearly understood this to be the applicant's claim and that the fear of harm was from local people who would incite the police and military to arrest him. What the Tribunal found, based on independent information available to it, was that whilst there have been some isolated incidents of mob violence against LDII mosques in East Java, that the independent evidence did not suggest that similar incidents had occurred outside of East Java. I agree with Ms. Allars that it is a matter for the Tribunal if it preferred independent country information available to it (that suggested that incidents had not occurred outside East Java) over the applicant’s evidence that he would be in danger wherever he went in Indonesia because of his membership of Islam Jama’ah.

11. In another element to this complaint, the applicant asserts (with reference to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19]), that the Tribunal made a particular finding which was a critical step leading to its ultimate conclusion, and that there was no evidence to support this finding. The applicant claims that the Tribunal found that, apart from his detention in 1993 and being questioned in 1995 that:

    “[The applicant] did not claim to have been prevented from practising his religious beliefs or restricted in his practise of them in any way. The two incidents to which [the applicant] referred had not ongoing adverse consequences. He was not charged with any offence…"  (CB 141.3).

12. The applicant complains that these findings were either wrong, or relevantly unsupported by any probative material. Mr. Anthony referred the Court to the transcript of the hearing before the Tribunal at T13 when, in answer to the question as to whether he had been charged with any offence, the applicant replied: “Yes”, and provided some detail as to the offence with which he had been charged. The claim is that the Tribunal plainly misunderstood or misrepresented the applicant’s evidence in this regard. 

13. In its decision record, at CB 140.8, the Tribunal states:

    “I accept that [the applicant] was briefly detained in 1993 and that he was asked to present himself for questioning by the local military post in 1995. However from [the applicant’s] own evidence, it is clear that neither of these incidents resulted in charges being laid against [the applicant] or in any ongoing adverse consequences”

    Again at (CB 141.3):

    “Apart from a brief period of detention in 1993 and a request to present himself for questioning in 1995, [the applicant] did not claim to have been prevented from practising his religious beliefs or restricted in his practise of them in any way. The two incidents to which [the applicant] referred had not ongoing consequences. He was not charged with any offence. Nor is there any indication that [the applicant] was of any ongoing interest to the Indonesian authorities.”

    This then led to the Tribunal finding (at CB 141.4):

    “In my view [the applicant’s] evidence at the hearing and in his protection visa application form indicates that [the applicant] was free to practise his religious beliefs, to be a member of LDII and to work as a teacher of religion. His evidence suggests that he taught in various schools by choice, eventually teaching in his hometown. [The applicant’s] evidence does not suggest that he was forced to move from town to town to avoid being arrested by the police. Indeed, [the applicant] clearly stated at the hearing that he does not fear the authorities, except insofar as they may be incited by the local people to arrest him. [The applicant’s] evidence suggests that whilst on two occasions complaints may have been made about him to the authorities, the authorities did not develop any ongoing interest in him because of this.”

14. The transcript of the hearing (at T13) reveals that the applicant initially claimed that he had been arrested in “…’91,’93…”. In answer to the question as to the offence with which he was “charged”, the applicant replied that it was for teaching Islam Jama’ah and for “sewing [sic] confusion among the people”. The applicant confirmed that he had only been arrested “only once”.

15. This is certainly consistent with the Tribunal's finding in which it accepted that the applicant had been briefly detained in 1993 following his arrest, and that he had been asked to present himself for questioning to a local military post in 1995, in relation to which he had not been arrested.

16. However, it is difficult to see why the Tribunal, in relation to the incident in 1993, at two parts of its findings and reasons (at CB 140.8 and CB 141.3) stated, at least clearly at CB 140.8, that it was the applicant’s own evidence that the incident had not resulted in “charges” being laid against him. The applicant, plainly, in reply to the relevant question, stated that he had been charged. It may be that the Tribunal saw the words “charged” and “arrested” as being interchangeable in the Indonesian context, and that the applicant was “arrested” for teaching Islam and sowing confusion.  But this is speculation in which this Court should refrain from engaging.

17. Therefore, I agree with Mr. Anthony that the Tribunal did make an error in stating that it was the applicant’s evidence that no charges had been laid against him (in relation to the 1993 incident). However, I also note that, with reference to Abebe v Commonwealth (1999) 197 CLR 510 (at [137]), there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact.

18. In any event, what is critical is, that the Tribunal accepted that the applicant had been briefly arrested and detained in 1993, which is consistent with what the applicant himself had said. Further, it found that he was asked to present himself for questioning by the local military post in 1995. This is again consistent with what the applicant said at the hearing, that is, up to November 1997 when he left Indonesia, these incidents, (regardless of whether one involved “arrest” and “charge”), or just “arrest”, did not result in any “ongoing adverse consequences” nor was he of “any ongoing interest to the Indonesian authorities”.

19. The relevant finding by the Tribunal flowing from these two incidents was that, whatever had occurred in 1993 and 1995, there were no adverse consequences for the applicant, and nor was he of any ongoing interest to the Indonesian authorities. The transcript of the hearing from about “Q118” (at T16.5) to about “Q137” (at T18.7) certainly supports the Tribunal’s conclusions that the applicant was free to practise his religious beliefs, to be a member of LDII and to work as a teacher of religion. The applicant clearly stated that, apart from being “arrested” (and “charged”) once in 1993 and summoned to present himself to the military in 1995, that nothing else of adverse consequence had occurred to him, and confirmed (at T17.7) that the greatest danger came from local people, not from the military or the police.  This is consistent with the Tribunal’s ultimate relevant findings.  In this sense, therefore, even if the Tribunal can be said to have misunderstood, or misinterpreted, the issue of “arrest” or “charges”, I cannot see that any such factual error ultimately undermined the Tribunal's proper exercise of its jurisdictional task.

20. Another element of the applicant’s complaint implicit in this ground is that the independent evidence before the Tribunal was not such as to establish a basis for the Tribunal's finding that it would be safe for the applicant to live elsewhere (other than East Java) in Indonesia. The complaint is that there was no evidence to support such a finding by the Tribunal. In essence, the complaint is that there was no evidence before the Tribunal that it was safe for followers of Islam Jama’ah in parts of Indonesia outside of East Java.

21. The applicant certainly claimed that he would not be safe anywhere in Indonesia and, relevantly on this issue, in any place outside of East Java. But the Tribunal is not required to uncritically accept the applicant's assertion in this regard. On the material before the Court now, and on what was before the Tribunal at the relevant time, I cannot see that it was not open to the Tribunal to find that the independent evidence was such that there was no suggestion of similar incidents of mob violence against LDII outside of East Java, as had occurred in an isolated fashion within East Java. In considering this aspect of its relocation finding, I agree with Ms. Allars that it is not necessary for the Tribunal to have positive evidence of safety in any or all of the locations outside of East Java. Randhawa establishes that the “reasonableness” test which the Tribunal must apply is to assess the likelihood of harm, relevantly, outside of East Java.  In my view, the Tribunal was entitled to come to the conclusion that it did, and it was open to the Tribunal to do so on the basis that there was an absence of country information that the applicant, as a teacher, and member of LDII, and teacher of Islam Jama’ah, would be exposed to harm outside of East Java. In all, therefore, this ground does not succeed.

Conclusion

1. I cannot discern jurisdictional error arising from the grounds put forward by the applicant in his amended application, and as pressed by Mr. Anthony.  On this basis, I cannot see that the applicant is entitled to the relief that he seeks and dismiss the application accordingly.

Discretion

1. However, I should note, if for no other reason than as a matter of courtesy to both Counsel, particularly in light of the comprehensive submissions made by Ms. Allars on this issue (for which the Court is appreciative), that even if I had found for the applicant on any of the grounds put forward, I would not have exercised the discretion in favour of the applicant in granting the relief that he seeks.

2. In this case, the application for review by the Court was filed on 10 May 2005.  The Tribunal decision was made on 23 November 1999 and sent to the applicant by registered post on the same date.  The Minister pressed the issue of delay, but not for the whole of the 5½ years between notification of the decision, and application to this Court. 

3. What was not a matter of contention between the parties was that, following the Tribunal’s decision, the applicant joined Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (“the “Lie” class action”). The delay pressed by the Minister was for the period as between 20 February 2004 (the date of ultimate disposition of the “Lie” action commenced in the High Court) and 10 May 2005. That is, a period of some 14½ months. 

4. Nor was it a matter of dispute between the parties that the common law principle of delay can form part of the discretionary basis for refusing relief sought by an applicant.

5. In Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 at 495 to 496, McHugh J said:

   “Independently of the merits of this case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief, could ever be granted an extension of time to quash such a decision, unless some conduct of the respondent or the public body or official had brought about the delay.”

6. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, the High Court confirmed delay as a discretionary basis for refusing relief (in the context of seeking relief by way of constitutional writs). See in particular [52] to [54] per Gaudron and Gummow JJ and [148] to [149] per Kirby J. See also s.476(1) of the Act for the jurisdiction of this Court. Further, see McHugh J. in SAAP at [80]:

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

   See also Hayne J. at [211] and Kirby J. at [174].

7. Where the parties differ, however, is on the issue of whether the applicant’s request to the Minister in exercising the discretion, pursuant to s.417 of the Act, (made on 19 March 2004 and ultimately resolved against the applicant on 13 April 2005), was an adequate and sufficient explanation such as to explain the delay between the resolution of the applicant’s previous litigation in relation to the Tribunal’s decision and the making of the current application before this Court.

8. Mr. Anthony relied on Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195 (“Applicants M160/2003”), where Finkelstein J. rejected the contention on behalf of the Minister that time taken up in pursuing a request pursuant to s.417 of the Act would not constitute good reason for the delay (see in particular at [6] and [8]). The applicant also relied on two decisions of this Court, NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84 (“NAGG”)and SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301 (“SZHEH”). 

9. In pressing the issue of delay in light of the applicant having sought the Minister’s intervention, pursuant to s.417 of the Act, Ms. Allars relied on a large number of Federal Court judgments, which she submitted consistently held that by making a request under s.417 of the Act, an applicant impliedly asserts that there is a Tribunal decision of which he is aware and that he accepts the Tribunal’s decision and has made the decision not to seek judicial review, but to take the alternative course of seeking a favourable exercise of discretion by the Minister:

   1)In Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 (“Applicant A2 of 2002”), von Doussa J., held that an applicant’s action to pursue Ministerial intervention pursuant to s.417 of the Act indicated a decision on the part of that applicant to accept the Tribunal’s decision and take another course other than judicial review (at [9]). His Honour stated that once an applicant takes that course, he or she “must live with the consequences of the delay that occurred” (at [9]). Nor did the period of time spent awaiting a decision pursuant to the request provide an adequate explanation for the delay in seeking judicial review.

   2)Batuwantudawa,in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684, Gray J. held that the making of a request, pursuant to s.351 of the Act (the similar relevant section relating to requests for Ministerial intervention in cases where an unfavourable decision has been made by the Migration Review Tribunal) “tended to suggest that the applicant was prepared to accept as correct the decision of the Tribunal and that she did not intend to avail herself” of judicial review (at [9]). The Court held that making a request pursuant to s.351 of the Act and seeking relief in the Court were “inconsistent courses” (at [9]).

   3)In Re Ruddock; Ex Parte LX [2003] FCA 561 at [42], Heerey J. held that, the language of s.417 of the Act, that the power may only be exercised personally by the Minister, suggested that it was to be reserved for rare cases and that it would be, in the usual course, unwise for the applicant to rely on the success of such a request, when other avenues of possible relief, for example, an application to a Court, were available as of right.

   4)In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 (“Applicant M29”), Weinberg J. agreed with the observation in Applicant A2 of 2002 (at [12]).

   5)In Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [18] –[20], Weinberg J. reached a similar conclusion to that in Applicant M29 (see also Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186).

   6)In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198, an extension of time was refused in circumstances where an applicant had lodged an application for review in the Federal Court and this was dismissed in 2000. The applicant then pursued Ministerial intervention while a decision on that request was pending. This was delayed for nine months before filing an application in the High Court. The Court found that the request pursuant to s.417 of the Act was “inconsistent” in challenging the Tribunal’s decision in judicial review. Goldberg J. stated:

   “The taking of that course of action by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the tribunal on grounds available under the Act or otherwise at law…

   This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the tribunal’s decision was correct and that he did not intend to challenge that decision further in the court.  A similar approach has been taken in a number of cases in this court…” (at [14]).

1. These decisions were reviewed by the Full Court in M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520 (“M211 of 2003”). The Full Court commented that making a request pursuant to s.417 of the Act was conduct indicating acceptance of the Tribunal’s decision and that awaiting the outcome of that request did not provide an adequate explanation for delay (at [22]-[24]). The Court found that, in circumstances where the applicant delayed for three years whilst pursuing a s.417 request and awaiting its outcome, and before subsequently pursuing a complaint to the Commonwealth Ombudsman, the appellant had offered no real explanation for the delay in seeking the relief (at [21] and [36]). The Full Court stated:

   “Although the primary judge did not dismiss the application for prohibition on the ground of the appellant’s lengthy delay in seeking constitutional writs, that, and the making of the s.417 application reinforce the propriety of the proceeding having been brought to an end.”(at [36]).

2. This approach has been followed subsequently in:

   1)S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 (“S58 of 2003”). In this case, Madgwick J. held that in the absence of evidence, the Court is entitled to infer that an applicant who makes a request pursuant to s.417 of the Act accepts the Tribunal’s decision (at [10]). Relevantly, if at the time of making the decision, the applicant is advised by a firm of solicitors and does not give evidence as to some other reason for the delay, then the inference may be drawn that he accepts the Tribunal’s decision (at [11]).

   2)In SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457, Jacobson J. accepted the approach in S58 of 2003 (at [42]). (I should just note that, in that case, Jacobson J. allowed the appeal from the dismissal of the application on the ground of delay because he was not satisfied that there was evidence before the Federal Magistrates Court as to the date on which the appellant became aware of the Tribunal’s decision).

   3)In M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24, Goldberg J. held that an explanation for delay was less than satisfactory in circumstances where an applicant, having been involved in a class action, then made a request pursuant to s.417 of the Act, with a delay of nine months awaiting the outcome, and then lodged an application for review in the Federal Magistrate’s Court, with a total period of delay from the date of the Tribunal’s decision being just over three years. While the Court resolved the issue in that case on the basis of the lack of prospects of success in the application, at [18] and [20] (as is the case now before this Court), the Court observed that it was apparent that the applicant made a conscious decision, through his advisers, to abandon the route of seeking to review the Tribunal’s decision, and rather, decided to follow the alternative route of making a request pursuant to s.417 of the Act (at [18]).

3. Ms. Allars’ submission in relation to Applicants M160/2003 was that while the judgment in that case may appear “at first glance” to depart from the “well-established approach”, that this was not inconsistent with the other authorities. It was submitted that in that the proposition that was rejected by his Honour in that case was that “the mere making” of a request under s.417 of the Act, is conduct which indicates that an applicant does not intend to take judicial review proceedings, since such a request may be pursued before, concurrently, or after proceedings for judicial review (Applicants M160/2003 at [11]-[12]). In that sense, Ms. Allars submitted that this is consistent with the other authorities, in that, in none of the other authorities was the proposition accepted that a request under s.417 of the Act is to be ignored in considering whether there is a reasonable explanation for the delay.

4. I agree with Mr. Anthony’s submission that in Applicants M160/2003, the Court held that the making of a request pursuant to s.417 of the Act could not constitute waiver in the strict sense, or waiver by election (at [10] – [11]). Finkelstein J. rejected the proposition “the mere making” of a request pursuant to s.417 of the Act is conduct which indicates that an applicant does not intend to take judicial review proceedings on the basis that such a request may be pursued before, concurrently with, or after proceedings for judicial review (at [11]-[12]).

5. However, I note that subsequently, in SZGPZ v Minister for Immigration Multicultural and Indigenous Affairs [2006] FCA 683 at [25]-[26], Collier J. followed Applicant A2 of 2002, Applicant M29 and Applicant M211 of 2003, rather than Applicants M160/2003.

6. I further note that there are some decisions of this Court, (including two which the applicant has relied upon): NAGG, SZHEH at [36]-[41] and SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661 (relying on Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316) where the explanation of pursuing a “s.417 request” was found to be acceptable in explaining delay.

7. While each of the circumstances in each of those cases can, in my view, be distinguished from the circumstances before the Court now, to the extent that these cases appear to take a different view to what was set out in M211 of 2003, with respect, I take the view that M211 of 2003 is binding on this Court and plainly should be followed.            

8. Further, in relation to NAGG, the respondent submitted that while reference in that case was made to ApplicantsM160/2003, Applicant A2, Applicant M29 of 2001, M211 of 2003 and SZGPZ, the reference was that these authorities indicated differing approaches to the effect of a s.417 request upon delay. The Minister submits that the only case which apparently takes a different approach is Applicants M160/2003 and that the discretion as to whether the relief should be granted or not, was exercised according to a principal other than that stated in the Full Court authority of M211 of 2003. Further, that in SZHEH no reference is made to M211 of 2003 which the Minister emphasises is binding Full Federal Court authority. 

9. The evidence relevant to this issue is that presented by the applicant in his affidavit of 27 February 2007, filed in Court on 1 March 2007.  The applicant states that the Tribunal decision was handed down on
   23 November 1999, and on 9 December 1999 he joined the “Lie” class action.

10. Solicitors acted for the applicant in relation to the “Lie” class action and he applied to the Minister for intervention pursuant to s.417 of the Act, through his solicitors. He “relied” on his solicitors from 1999 until 2005. The “application” to the Minister pursuant to s.417 of the Act was made on his solicitor’s advice. It is clear that the applicant has provided no other explanation for the delay between the time of the ultimate disposition of his previous proceedings and the making of the application to this Court, other than he had made a request under s.417 of the Act, and was awaiting the advice of its outcome.

11. Mr. Anthony invites the Court to follow what was done in Applicants M160/2003, NAGG and SZHEH. I have not been able to discern jurisdictional error arising from the grounds put forward by Mr Anthony on behalf of the applicant. However for the benefit of the parties, had I found such jurisdictional error, I would, in any event, have applied what is set out in M211 of 2003, a Full Court judgement, which is reflected in a large number of other Federal Court decisions and would have declined to grant relief on the ground of the delay in this case.

12. Having found that the applicant's grounds do not reveal jurisdictional error on the part of the Tribunal, the application is dismissed.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Dawnie Lam

Date:  26 June 2007