SZGLK v Minister for Immigration
[2006] FMCA 673
•19 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 673 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
| Appellant S395/2002 v Minister for Immigration (2004) 216 CLR 473 Re Refugee Review Tribunal & Anor; Ex parte Aala [2006] HCA 57 SAAP v Minister for Immigration [2005] HCA 24 |
| Applicant: | SZGLK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1425 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz Solicitors |
ORDERS
The Refugee Review Tribunal is joined as a second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1425 of 2005
| SZGLK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 1 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 14 January 1998, affirming a decision of the delegate of the first respondent made on 17 March 1997, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGLK”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Mr Smith, counsel for the respondents, tendered a letter dated
23 March 2004 from Adrian Joel & Co. addressed to Minister entitled “Section 417 Application – [applicant’s name]”.
Background
The Tribunal decision of Luke Hardy (Reference no: N974/14535) contains the following background information concerning the applicant. The applicant is a national of Malaysia who first arrived in Australia on 13 December 1987. He departed again and later returned on 30 December 1991, departing again on 17 July 1992. He last arrived in Australia on 26 July 1992. The applicant sought refugee status by way of an application to the Department on 22 December 1994. On 17 March 1997, a delegate of the Minister refused to grant Protection (Class XA) Visa. On 27 March 1997 the applicant applied to the Tribunal for review of the delegate’s decision. (Court Book (“CB”) 142)
The applicant claims fear of persecution in Malaysia on a Refugees Convention related ground of “membership of a particular social group”, in his case being “male homosexuals in Malaysia”. The applicant is ethnic Chinese and a Christian. He claims he lived in a small village some 60 kilometres from the capital Kuala Lumpur. He claims that neither he nor anyone he knew recognised that he was homosexual when he lived in Malaysia. At the same time he claims he was only ever interested in men and that no one ever dared to talk about such things in Malaysia. He indicated that this was because of social stigma attached to the notion of homosexuality, not only in ethnic Chinese society but also in Malaysian society at large.(CB 145)
Agreed facts
The parties agreed on the following for the purposes of this hearing:
a)That in or about February 1998, the applicant joined the Macabenta class action: Macabenta v Minister for Immigration (1998) 159 ALR 465.
b)On 10 June 1999, the applicant joined the Muin and Lie class action: Muin v Refugee Review Tribunal& Ors (2002) 190 ALR 601.
c)The Muin and Lie class action was dismissed on 20 February 2004.
d)An application was made on behalf of the applicant by Mr Joel under s.417 of the Act on 23 March 2004 and the applicant was notified by letter on 5 April 2005 that that application was unsuccessful.
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons are contained in the first respondent’s written submissions prepared by Mr Smith:
6.The Tribunal assessed the applicant’s claims on the basis that his sexuality would become known in Malaysia. It found, however, that the risk of the applicant being harmed for reasons of potential perception as to the applicant’s sexuality was random, in other words, that there was no systematic course of conduct against homosexuals throughout Malaysia. It rejected the claim that there was a real chance of him being prosecuted under the provisions of the Malaysian Criminal Code: CB 149.8. It went on to consider that, since it would not be reasonable to expect the applicant to live in a place such as Selangor, the applicant could be reasonably expected to relocate to Kuala Lumpur given that it was only 60 kilometres from his home and that he had shown already by an extended sojourn in Australia his ability to move somewhere outside his home town. The move to Kuala Lumpur would mean that he would face no persecution on account of his sexuality.
Application for review of the tribunal’s decision
On 1 June 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following ground:
The Tribunal, in finding that “the applicant does not face a reach chance of Convention-related persecution in Malaysia”, assumed that the applicant would act discretely on his return to Malaysia, without considering the basis upon which the applicant would act discretely. On this basis, the Tribunal contravened the principle stated in Appellant S395/2002 v MIMIA (2003) 216 CLR 463, giving rise to jurisdictional error.
The application contained a second ground, however counsel appearing for the applicant, indicated that the second ground was abandoned.
Reasons
Mr Zipser, counsel for the applicant, referred the Court to the applicant’s statement that was attached to his protection visa application which was filed on 24 December 1994.(CB 24 to 30) In that statement, the applicant claimed:
a)In Malaysia he had “feelings for men”. “The culture, increasingly fundamentalist in terms of Islamic outlook, acted as a powerful catalyst to ensure the suppression of such feelings.”(CB 26.8)
b)Following the applicant’s arrival in Australia, “his feelings, his attachment, his sexuality became expressed”. (CB 26.10)
c)The applicant “sought to live in terms of the dictates of his sexuality”.(CB 27.1) He began to convey his “overt sexuality”.(CB 27.9)
d)In Sydney: “the applicant maintains a gay lifestyle. He congregates in gay clubs and meeting places. He greatly values being accepted amongst gay Asian friends, for example, there are regular meetings at the Heffron Community Hall in Burton Street, Darlinghurst, usually on Friday evenings…He also valued attendance at social occasions which are overtly accepting of his Asian gay sub-group. A further accommodating venue, for example, is the Silk Road in Oxford Street…the applicant enjoys being amongst his peers in a climate of acceptance.”(CB 28)
Mr Zipser then referred to the part of the Tribunal decision headed “Findings”(CB 148.5):
In any event, the Applicant is not asking for the right to be “openly gay”. He claims that no matter how discrete he might try to be, and discretion seems by now to be germane to him, the truth will nevertheless out and that he will suffer harm as a result of what is merely assumed about him.
Mr Zipser submits that this paragraph shows the Tribunal assumed that the applicant will act discretely if required to return to Malaysia. However the Tribunal did not consider why the applicant would act discretely. Mr Zipser suggests, for example, if the applicant were to act discretely or suppress his feelings because of the strict Islamic tenants that exist in Malaysia, then that may be a form of discrimination or prejudice which can amount to persecution.
Mr Zipser then referred to the Tribunal finding (CB 148.10):
However, the Tribunal does not accept on the evidence before it that the risk of the Applicant being harmed for reasons of potential perceptions as to his sexuality is other than random.
It was submitted that this finding was based on the assumption that the applicant could act discretely.
Mr Zipser then relied on the High Court decision of AppellantS395/2002 v Minister for Immigration (2004) 216 CLR 473 (“S395/2002”) at [43], [44], [50], [82] and [83] per Gummow and Hayne JJ:
43.The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
44.Subject to the law, each person is free to associate with any other person and to act as he or she pleases, however much other individuals or groups may disapprove of that person's associations or particular mode of life. This is the underlying assumption of the rule of law. Subject to the law of the society in which they live, homosexuals as well as heterosexuals are free to associate with such persons as they wish and to live as they please…
50.In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed…
82.Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
83.Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning, exemplified by the passages from reasons of the Tribunal in other cases, cited by the Federal Court in Applicant LSLS v Minister for Immigration and Multicultural Affairs35, leads to error. It distracts attention from the fundamental question…
Mr Zipser submits that the Tribunal in this case contravened the principle stated in S395/2002, by assuming that the applicant would act discretely upon return to Malaysia, without considering the reasons why the applicant would act discretely.
Mr Smith, appearing for the respondents, submits that S395/2002 can be distinguished from the current case. Referring to the submission that the Tribunal failed to consider whether being forced to be discrete may in itself constitute persecution, Mr Smith submits that S395/2002 is not authority for that proposition. Also that the suggestion by counsel for the applicant that the Tribunal erred by proceeding on the basis that it expected the applicant to be discrete upon return to Malaysia, was not what the Tribunal found.
Mr Smith then referred to the Tribunal’s decision, in particular what I have already reproduced at [12] above. He submitted that the Tribunal proceeded to consider the application on the basis that the applicant would be known in Malaysia to be gay regardless of how he has acted.(CB148)
Mr Smith contends that the submission made on behalf of the applicant is based upon the applicant being and remaining discrete. However, he submits that that is only “half the story” as the Tribunal had already implicitly accepted that even if he may behave discretely, the applicant’s homosexuality was already a known fact. For that reason, the Tribunal went on to consider the attitudes of the people of Selangor, and then in Kuala Lumpur.
Mr Smith submits that the Tribunal accepted that Selangor has state sanctioned community initiatives to systematically expose and drive out homosexuals. However, the Tribunal considered the freer situation in Kuala Lumpur. It referred to the Malaysian government knowledge of and cooperation with certain gay organisations, even though the Tribunal did acknowledge that the cooperation was begrudging. Mr Smith submits that the Tribunal did not make a finding of what it thought the applicant ought to do, but rather of what he would do. The member then assessed the applicant’s likelihood of persecution on that basis. That being persecution brought about by some perception of him being gay. What the Tribunal did not find, and in fact found to the contrary, is that a person cannot be openly gay in Malaysia. It did not find that if a person is found out to be gay in Malaysia, that they face certain persecution. Mr Smith submits that the member also did not find, because it was not the case made by the applicant, that he has been able to avoid persecution and will be able to continue doing so, so long as he remains discrete.
Mr Smith submits that S395/2002 turned on those very three findings, none of which appear in this case. In S395/2002 at 483, McHugh and Kirby JJ set out the three questions in that appeal:
The questions in these appeals are whether the Tribunal erred in law:
• by impliedly dividing homosexual men into two particular social groups – discreet and non-discreet homosexual men;
• by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution; and
• by failing to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals.
In our opinion, the Tribunal erred in law in each of these respects.
Mr Smith submits that it cannot be the case that the third of these errors was made in this case. The Tribunal had already found that if the applicant’s homosexuality was openly known, the applicant would not face a real chance of persecution.
Mr Smith then referred me to the joint judgment of Gummow and Hayne JJ in S395/2002. He submits that it is apparent that Their Honours did not join McHugh and Kirby JJ in finding that there was an error by that Tribunal in failing to consider whether the need to act discretely to avoid the threat of serious harm constituted persecution: S395/2002 at [88]-[90]. Their Honours found two errors, the first is referred to at [88]:
…the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.
Mr Smith submits that there were three factual elements in that Tribunal’s reasons. First, that it is not possible to live openly as a homosexual in Bangladesh; secondly, that no attempt to live openly as a homosexual would mean one would face problems; and thirdly, that men in Bangladesh can have homosexual affairs or relationships provided they are discrete. Mr Smith submits that these elements of that Tribunal decision caused the majority justices to find jurisdictional error in S395/2002. Mr Smith argues that none of those elements are contained in the Tribunal’s reasons in this case.
In S395/2002, Gummow and Hayne JJ found that there was jurisdictional error in the Tribunal’s inability in dealing with the question of whether Australia owed the applicants protection obligations: S395/2002 at [89]. Their Honours agreed with McHugh and Kirby JJ in that there was an implicit division of homosexuals into two groups, discrete and indiscrete. Mr Smith argues that that did not occur in this case because the Tribunal made its decision on the basis of the applicant being openly gay. Regardless of the way the applicant acted, he was nevertheless seen or perceived as homosexual.
Mr Smith argues that the Tribunal’s reasons in this case do not display the error found in the Tribunal decision that was subject of review in S395/2002. The Tribunal made an assessment of the applicant’s chances of persecution on the possibility (if not the probability as the applicant’s case would have it) that the truth was out and that he would be discovered or known to be homosexual. The Tribunal member then assessed that in respect of different areas of Malaysia, accepting that in some parts of the country homosexuality might lead to problems, but not in others.
I believe the argument put forward by Mr Smith in respect of the application of S395/2002 is convincing. However, in light of the large number of cases that come before this Court which are decided on the principles set out in S395/2002, I was not referred, nor was I able to find any other authority, in which this distinction argued by Mr Smith has been identified and applied. In those circumstances, I believe it would be inappropriate to find that no jurisdictional error has occurred. In those circumstances, I believe I am bound to follow the widely accepted interpretation of High Court in S395/2002.
The other issue in this matter is the question of delay. The parties agree that when the applicant was a member of the Muin and Lie class action, between 10 June 1999 and 20 February 2004, the Minister made an undertaking not to count that period against the applicant.
Mr Zipser submits that two periods remain which relate to the issue of delay. The first period is between the date of the Tribunal decision on 14 January 1998 and the filing of the class action application on 10 June 1999. In February 1998, the applicant joined as a member of the Macabenta class action. Mr Zipser concedes that the Macabenta class action was not about refugee status but argues that the applicant’s participation was a relevant act, albeit not determinative. Mr Zipser argues that it cannot be said that the applicant was inactive during that period. He was legitimately seeking to remain in Australia lawfully.
Also relevant to the delay issue is the period between the end of the Muin and Lie class action and the time that the applicant commenced proceedings in this Court, specifically the period between 20 February 2004 and 1 June 2005. Mr Zipser relied on two authorities in respect of this delay. First, M162 of 2002 v Minister for Immigration [2003] FCA 1146 at [14], [16], [22] and [23] per Goldberg J:
14.The grant of an extension or an enlargement of time within which to apply for the issue of writs of certiorari or mandamus involves the Court exercising a discretion. An extension or an enlargement of time is not automatically granted on application. The cases have established a number of factors which the Court may take into account in determining whether an extension or an enlargement of time for applying for the issue of writs of certiorari or mandamus should be granted. These factors include the length of the delay, the reason for the delay, whether any decision was made at any stage to accept the decision of the RRT, whether any party may be prejudiced if the extension or enlargement of time is not granted and the applicants’ prospects of success in obtaining an order for the issue of the writ. There are also the underlying principles that there should be an end to litigation and that the Court should seek to achieve justice between the parties… (authorities omitted)
16.In the present case the length of the delay in lodging the application with the High Court looms large. The decision of the RRT was handed down on 22 July 1996 and the application to the High Court was made over six years later on 18 September 2002…
22.The applicants submitted therefore that they had provided an explanation for the delay, being the taking of active steps to remain in Australia…The difficulty with that submission is that the active steps which they took were predicated on the basis that they were accepting the correctness and finality of the RRT decision…their request to the Minister on 21 November 1996 that the Minister exercise his discretion to substitute a more favourable decision under s 417 of the Act for the decision of the RRT is only explicable on the basis that the applicants were not challenging the finality of the RRT decision.
23. However, the factors and principles to which I have referred, and which were explained by McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra), are not rigid rules to be implied inflexibly. Rather, they are a guide or a set of beacons to be taken into account in determining how a judicial discretion should be exercised. In any given case the weight to be attached to a relevant factor will vary depending upon the weight ascribed to other factors. For the reasons to which I shall refer, I consider that there are exceptional circumstances which appear to outweigh the tipping of the balance or scales which would otherwise occur as a result of the significant period of delay and the implicit acceptance by the applicants of the correctness and finality of the RRT decision of…These exceptional circumstances fall into two categories. Firstly there are the consequences of what might happen to the applicants if returned to Sri Lanka. According to the country information before the RRT they run the risk of detention on arrival. Secondly there is the nature and consequences of the jurisdictional error of the RRT which is relied upon.
Mr Zipser submits that the evidence that he relies upon is contained within the Court Book. He also submits that there is a risk of prejudice to the applicant that he will be discriminated against or persecuted if he returns to Malaysia. Alternatively, the evidence would suggest that given his ability to act discretely, he may need to modify his behaviour in an artificial way in order to avoid persecution in Malaysia.
Mr Smith correctly submits that if the Court finds that there is jurisdictional error, then by the exercise of discretion, relief should be refused because of delay. Mr Smith identifies three periods of delay. The first is from January 1998 to June 1999. The applicant justifies this period of 18 months by the fact that he joined the Macabenta proceedings in February 1998. However, those proceedings did not take issue with the Tribunal decision in this case. This was despite the applicant knowing that he could apply to the Federal Court within 28 days to seek review. He did not do so at that time. The Tribunal letter dated 15 January 1998 clearly states that if a person “wants the Federal Court of Australia to review your case you must apply within twenty-eight (28) days of notification of this decision…”(CB 140) Significantly, at the relevant time the applicant was represented by a solicitor. Mr Smith submits that the applicant was aware that he could apply to the Court for review. This had been done on two occasions prior to these proceedings, namely, participating in the Macabenta and Muin and Lie class actions.
Mr Smith submits that the participation of the applicant in the Macabenta proceedings is irrelevant to the question of delay. He accepted that the applicant was involved in some form of proceedings, but they did not relate to review of the Tribunal decision, which is the important point. Even if the Macabenta class action was to be taken into consideration, it finalised in December 1998, which leaves a further unexplained delay of seven months prior to the applicant joining the Muin and Lie class action.
The Muin and Lie proceedings were finalised in February 2004. The applicant did not initiate these proceedings until June 2005, being a period of 16 months later. Mr Smith also referred to M162 of 2002 at [22] which indicated that an application under s.417 proceeds on the assumption that the decision of the Tribunal is correct. This is confirmed in a letter written by the applicant’s solicitor, Mr Adrian Joel, to the Minister, requesting him to “evoke sympathy to apply the Ministerial Guidelines”.(Exhibit 1) Mr Joel acknowledged that the Tribunal had assessed the applicant’s claim and was not satisfied that they were sufficient for revoking Convention grounds. Mr Smith submits that the letter makes explicit the assumptions referred to by Goldberg J in M162 of 2002. That is, that this application was made on the basis that the Tribunal had arrived at the correct decision on the merits and on application of the relevant law. However, for humanitarian reasons arising outside the scope of the Tribunal’s jurisdiction, the applicant ought nevertheless be granted a visa, or at least be recognised as a refugee.
Mr Smith then submits that in respect of the Macabenta class action and s.417 application, neither of which specifically addressed judicial review of the Tribunal decision, there remains a delay of some 32 months. The only explanation for this delay is that the applicant had taken steps other than those that specifically addressed judicial review of the Tribunal’s decision. The Court can exercise its discretion to refuse relief because of the unexplained delay. In this respect, I am guided by Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57 at [51] where Gaudron and Gummow JJ endorsed the view of Gibbs CJ in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100:
51.If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course…
54.…the discretion with respect to all remedies in s 75 (v) is not to be exercised lightly against the grant of a final remedy…
55.Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
The decision then discusses the principles of unwarrantable delay, acquiesce and waiver.
In the presence case, I acknowledge that the applicant was present in Court and his counsel indicated that the applicant was prepared to enter the witness box and give sworn testimony including evidence on the question of delay. I also note that despite orders to the effect that evidence must be filed in a formal affidavit, there is no material of this nature before the Court. As the delay has been substantial and is a significant element in these proceedings, I believe that the issue should have been addressed in a more formal manner.
Conclusion
Although Mr Smith, counsel for the respondent, has made interesting submissions in respect of S395/2002, I am unable to find any support for that interpretation, nor was I referred to any other authority that adopted that approach. Consequently, I believe I am bound to find that a jurisdictional error occurred in the Tribunal’s findings in respect of the applicant’s claims with regard to his homosexuality. On the question of delay, both sides acknowledge that there have been periods when the applicant has been pursuing action to secure his refugee protection status. However, none of which focussed on review of the Tribunal’s decision. Part of these attempts occurred on acceptance that the Tribunal decision was in fact correct. The actions were commenced by the applicant while represented by a legal practitioner specialising in migration law. Putting that to one side, there still remain significant unexplained delays. As the applicant has had the benefit of legal advice on how he should be pursuing his protection claim, he cannot sustain the argument that the delays were due to his ignorance of the system. The documentation accompanying the original Tribunal decision contained the warning that judicial review must be sought within 28 days of notification of that decision. In the circumstances, I believe it is appropriate to exercise my discretion and refuse relief.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 17 May 2006
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