SZHRF v Minister for Immigration

[2006] FMCA 766

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHRF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 766

MIGRATION LAW – Refugee – concession of jurisdictional error – court’s discretionary considerations in granting relief – application dismissed.

Migration Act 1958, ss.441G, 65, 36(2), 424A, 424A(1), 422B, 441A, 417

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 346
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal Ex parte H [2001] HCA 28
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
TheKing v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Australia) Ltd (1949) 78 CLR 389
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Re Minister for Immigration and Multicultural and Indigenous Affairs and; Ex parte Applicants S134/2002 [2003] HCA 1
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
Re Commonwealth of Australia & Anor; Ex parte Marks (2000) 177 ALR 491
Applicant S1338 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 53

Applicant: SZHRF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3457 of 2005

Judgment of: Nicholls FM

Hearing date: 11 April 2006

Date of last submission: 20 April 2006

Delivered at: Sydney

Delivered on: 6 June 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. E. Palmer

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in the proceedings.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3457 of 2005

SZHRF

Applicant

And

MINISTER FOR IMMIGRATION & MULITCULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 24 November 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 May 2000 and handed down on 17 May 2000 to affirm the decision of a delegate of the respondent Minister made on
   6 October 1999 to refuse a protection visa to the applicant.

2. The applicant is a citizen of China who arrived in Australia on
   13 December 1998. He returned to China in 1999 following the breakdown of the relationship with his wife, but came back to Australia shortly after.  His claims to protection are centred around “political troubles” that started with his return to China, after a period of time spent in Australia. He claimed that he was forced to return to Australia and seek protection due to this trouble. He claimed that he was refused work when he returned to China and that his boss, whom he claimed was a Chinese Communist Party leader, “kicked him out” because he said he should stay in Australia, a “capitalist country”. He claimed that the local neighbourhood community refused to register his household and that he had been reported to the PSB (the National Security Bureau). He claimed that in this period he was supported by his siblings. He further claimed that in April 1999 in China he met with “some dissidents” and discussed political ideas and opinions. He also claimed that at their suggestion he return to Australia. His ex-wife refused to re-marry him, and in those circumstances he was forced to seek refugee protection in Australia. The applicant further claimed, in his protection visa application, that he became involved with Falun Gong in Australia and that when he was in China he had obtained “Qi Quong” skills. As such, his claims to protection are based both on his political beliefs and religion.

3. The applicant’s claims to protection are set out in his protection visa application which is reproduced in the Court Book (“CB”) at CB 1 to CB 23 and in particular in an attached statement at CB 24 to CB 26. The application for review is at CB 43 to CB 48, with a supporting letter from the applicant’s brother at CB 50 to CB 51 (English translation at CB 49).

4. The Tribunal wrote to the applicant on 16 March 2000 (CB 56 to CB 57). The letter was sent to the applicant’s address for service, with a copy sent to the applicant’s migration adviser. I note that Division 7A of Part 7 of the Migration Act 1958 (“the Act”) which includes s.441G (dealing with “authorised recipient”) was added to the Act and became operational on 10 August 2001, which was after the date of the Tribunal’s letter and the making and handing down of the Tribunal’s decision. The letter notified the applicant that on the material before it, the Tribunal could not make a favourable decision. The Tribunal invited the applicant to appear at a hearing before it on 1 May 2000. The Tribunal emphasised that if the applicant failed to attend the hearing, and a postponement had not been granted, the Tribunal may make a decision on the case without further notice. The Tribunal enclosed a “Response to Hearing Invitation” form. This form was returned to the Tribunal (CB 58) and indicated that the applicant wanted to come to the hearing. On the scheduled day the applicant did not attend. The material before me does not reveal any explanation by the applicant to the Tribunal. The Tribunal proceeded on 3 May 2000 to make a decision on the material before it.

5. The Tribunal’s “Findings and Reasons” are reproduced at CB 69.2 to CB 70.6. The Tribunal:

   1)Noted authority (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 346) supporting the position that delay in applying for refugee status is a “relevant consideration” (CB 69.5), although it recognised that delay cannot itself be determinative (CB 69.9).

   2)Found that the applicant’s delay in making the application was an “indication that the depth of the applicant’s fear of persecution is not significant” (CB 70.1).

   3)Rejected that the applicant was an “activist” in the pro-democracy movement in China (CB 70.2).

   4)Noted the applicant’s claim that he was refused work in China after his return from Australia, but queried why the applicant would have expected a job when “he also refers to millions of unemployed in China” (CB 70.2).

   5)Noted that the applicant claimed he “fought back” with his boss but that there was no further explanation, particularly in regard to whether this involved a physical altercation (CB 70.2).

   6)In relation to the applicant’s claims about his inability to register his household, found that there was insufficient information to determine if this was related to a Convention reason (CB 70.3).

   7)In relation to the applicant’s claims that he had no residence in Beijing and no social welfare benefits, the Tribunal noted that despite this he was able to depart China “without difficulty”, and further noted the applicant had provided no details of the steps taken to “obtain his entitlements” (CB 70.4).

   8)Found that in relation to the applicant’s claims based on his Falun Gong membership, that so little detail was provided that the Tribunal “cannot be satisfied that this gives rise to a fear of persecution for the applicant” (CB 70.5).

   9)Also found that there was insufficient detail in relation to his claims as they concerned meeting and exchanging political ideas with “dissidents”.

   In conclusion the Tribunal found that it had been provided with so little detail and evidence that it could not be satisfied that his claims were “true”. This was despite the applicant being put on notice by the Tribunal (by its letter of 16 March 2000) that it was unable to make a decision favourable to him on the material before it. The Tribunal could not reach the requisite level of satisfaction as required by the relevant statutory regime, and as such affirmed the delegate’s decision not to grant a protection visa.

6. The originating application to this Court, filed on 24 November 2005, claims:

   “1) I am citizen of China who claims to have a well-founded fear of persecution for reasons of my political dissident in China under the Refugee Convention as amended by the Refugee protocol.

   2)The Tribunal failed to deal with the Applicant’s claim of persecution by reason of my political dissident.

   3)The Tribunal was in error of law those finding were open to it from my side fact and evidence.

   4)The Tribunal member refused to accept that the Applicant has a well-founded fear of persecution convention reasons”

7. I note that the Court (that is, the Court Registry) received an amended application on 22 February 2006. It appears that an “administrative oversight” in the Court’s Registry led to this amended application not being placed on the Court file. Fortuitously, the amended application came to the Court’s attention the day before the hearing. The applicant’s complaints in the amended application are as follows:

   “1)The RRT committed jurisdictional error of law in that it breached its natural justice or, in the alternative its procedural fairness obligations to the Applicant.

   Particulars:

   i)The tribunal made finding regarding the Applicant’s credibility, because of his delay in applying for protection. The finding was contrary to the evidence submitted by the Applicant that fully explained the reason for the delayed application for protection.

   ii)The tribunal failed to evaluate the relevance of letter written to the applicant by his brother. The letter confirmed that the Applicant would be a risk of persecution if he returns to China. See Court Book at folio 49.

   2)The Tribunal misunderstood and misrepresented the Applicant’s     claim of imputed political opinion and in doing so incurred in reviewable error.

   Particulars

   i)The tribunal incorrectly characterised the Applicant’s claim as being based on a dispute with his formed boss. However, the RRT failed to acknowledge and to consider that the former boss was a Chinese Communist Party leader.

   3)The Tribunal failed to consider the claim that the Applicant would face persecution if he returns to the PRC because of his membership of Falun Gong.

   Particulars:

   i)The Applicant claimed long term familiarity with Qi Qong and recent involvement with falun Gong and expressed fear of persecution for that reason. See Court Book at folio 47. Instead of determining the claim, the RRT alleged inability to do so because of the limited information submitted by the Applicant. The Applicant contends that the Tribunal was under a duty to determine the claim and that it failed to do so.”

8. At the hearing the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Ms. Palmer appeared for the respondent. The applicant was not clear as to the circumstances of the drafting and filing of the amended application. In particular, while he said (not in evidence before me) that he signed the document, he claimed that he had been given the document by one of the respondent’s employees (“the Department officer”) and did not know anything further about it. From the material before me it is clear:

   1)When the applicant attended before a Registrar of this Court at the first Court date on 22 December 2005 he appears to have provided contradictory advice as to whether he wished to participate in the Court’s Legal Advice Scheme (two versions of the “Return Advice” form).

   2)Nonetheless on 27 January 2006 the Court’s Registry did refer the applicant’s matter to a lawyer on the panel of that scheme – Mr. Urquijo of the firm “Barristers at law”.

   3)The amended application now on the Court’s file, (while dated
   23 February 2006) was sent to the Court’s Registry by facsimile transmission on 22 February 2006. There is no covering advice, but the facsimile imprint at the top of each page shows:

   “FROM: PARTNERS-IN-LAW SOLI”

   4)From the Court’s original referral of this matter to the panel lawyer, it is clear that this document was sent from the panel lawyer allocated to the applicant.

   In all the circumstances therefore, I proceed on the basis of considering the applicant’s complaints as expressed both in the originating and amended application. Ms. Palmer indicated that she was also content to address the grounds contained in that amended application.

9. The relevant statutory requirements, s.65 and s.36(2) of the Act, provide that a protection visa must only be granted if the decision maker is satisfied that the person applying for the protection visa relevantly satisfies the requirements as set out in s.36(2) and meets the definition of refugee contained in Article 1A(2) of the Refugees Convention. On what was put before the Tribunal, it could not be satisfied that the applicant met the requisite criterion for the grant of a protection visa. No jurisdictional error is revealed merely because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”)).

10. I note that in similar circumstances where an applicant failed to appear before the Tribunal in the face of a letter (the invitation to hearing letter) as in the case before me, putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly, the applicant was put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of the claims. The applicant did not attend. The applicant cannot now complain that the Tribunal was not able to be satisfied as to the matters that it needed to be so satisfied before the protection visa could be granted. In VSAF the Court cited the Full Federal Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said:

    "Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.”

11. Written submissions for the respondent were filed on 4 April 2006. The respondent submits that:

    1)The applicant’s stated grounds of review do not disclose jurisdictional error (but see below).

    2)An independent analysis of the Tribunal’s decision reveals that there is jurisdictional error in light of the Full Federal Court decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”). The respondent concedes there has been a breach of s.424A of the Act in that the Tribunal’s finding that the Applicant was able to depart China without difficulty was based on information provided by the applicant in his initial application for a protection visa lodged with the first respondent’s Department, and was therefore information required to be put to the applicant pursuant to s.424A(1).

    3)That notwithstanding the above, there has been a delay of five years in the bringing of the review application to the Court. In these circumstances, given the applicant’s failure to explain the delay, the Court should decline to grant relief in the exercise of its discretion.

    The Applicant’s Grounds of Review

12. The applicant’s first ground of review in the originating application is:

    “I am a citizen of China who claims to have a well-founded fear of persecution for reasons of my political dissident in China under the Refugee Convention as amended by the Refugee Protocol.”

    This is essentially a restatement of the basis of the applicant’s claim for refugee protection. As best, it is a request for impermissible merits review, an avenue unavailable to the applicant before me (Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259).

13. The applicant’s second ground of review is based on an allegation that the Tribunal failed to deal with the applicant’s claim of persecution by “reason of my political dissident”. I agree with the respondent’s submissions that the Tribunal did deal with this claim, as evidenced by its direct references to this claim in its “Findings and Reasons”:

    1)The Tribunal states at CB 70.4:

    “The applicant claims that in April 1999 in Bejing, he met with some dissidents and exchanged political opinions but provides so little detail I cannot make a finding in relation to the effect of this discussion”

    2)Further at CB 70.5:

    “The applicant claims after he came to Australia and he now is a political dissident but he has provided insufficient evidence for me to be satisfied that this is true”

14. The applicant’s third complaint appears to be that the Tribunal’s findings were not open to it (and it therefore made an error of law) when seen, from his perspective (“from my side”) in light of the “fact and evidence” provided by him. The Tribunal clearly considered the applicant’s claims but, as was open to it on the material before it, was unable to be satisfied, as required by the Act, that the claims were a basis for any fear of persecution. I note in this regard that the Tribunal specifically wrote to the applicant indicating that on the material before it, the Tribunal could not be satisfied. Despite an initial indication that the applicant would attend to provide further evidence and oral explanation he failed, without explanation, to do so. The applicant obviously chooses to disagree with the Tribunal’s findings. But no error of law is revealed, on what is before me, simply because the Tribunal was unable to be satisfied on what it found, variously, to be claims with “so little detail” and “insufficient evidence” and that “relevant questions” were “left unanswered”.

15. The applicant’s fourth ground of complaint is that the Tribunal member refused to accept that the applicant had a well founded fear of persecution. The respondent submits that the “applicant does not point to any error in the RRT’s refusal to find that the applicant had a well founded-fear of persecution”, and as such this is a request for the Court to cavil with the findings of the Tribunal. I agree with the respondent that in that sense and prima facie, this ground is of no assistance to the applicant. I further note, that if it can be read as an allegation of bias, in that the “refusal to accept” the claims is an indication of a closed mind on the part of the Tribunal, then the applicant has clearly failed to provide evidence to show apprehension of bias or actual bias as required by the relevant applicable tests (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 [69], [71], [72], [127] and Re Refugee Review Tribunal Ex parte H [2001] HCA 28 [27]-[32]).

1. The applicant’s amended application contains three grounds.

   1)The Tribunal committed jurisdictional error because of a breach of its natural justice or procedural fairness obligations to the applicant.

   2)The Tribunal misunderstood and “misrepresented” the applicant’s claims of imputed political opinion.

   3)The Tribunal failed to consider the applicant’s claim that he would face persecution if he returned to China because of his membership of Falun Gong.

2. The applicant’s complaint that the Tribunal breached its obligation to the applicants in terms of natural justice/procedural fairness is particularised in two ways:

   1)That the Tribunal made a finding regarding the applicant’s credibility because of his delay in applying for his protection visa and this finding was allegedly made contrary to the evidence submitted by the applicant which in the applicant’s view fully explained the reason for the delay in applying for protection.

   2)That the Tribunal failed to “evaluate” the relevance of the letter submitted by the applicant’s brother that confirmed that the applicant would be at the risk of persecution if he returned to China.

   3)I note relevantly that the ground as expressed makes no reference to any breach of the relevant statutory requirements. In any event I will deal with this aspect below. As the application for review to the Tribunal, and indeed the Tribunal's decision and the handing down of the decision, predated the introduction of s.422B to the Act (that section became operational on 4 July 2002) I considered the applicant’s complaint in the context of a breach of the Tribunal’s relevant procedural fairness/natural justice obligations at general law.

3. It is not clear from the Tribunal's decision record that it actually made a clear adverse finding in relation to the applicant’s credibility. At CB 70.2 the Tribunal stated:

   “I am satisfied that the delay of the applicant in making the application is an indication that the depth of the applicant’s  fear of persecution is not significant”

   When read in context with the rest of the Tribunal’s “Findings and Reasons” it appears that rather than a finding of adverse credibility this was an additional factor in the Tribunal not being able to reach the requisite level of satisfaction that a protection visa should be given to the applicant. In any event, what the applicant appears to complain of in the amended application is that the Tribunal took a view of this delay that was contrary to the explanation that he had provided. It is not necessary for the purposes of this case to go into great detail as to the applicable principles in relation to natural justice and/or procedural fairness obligations at general law. While clearly there is a duty to plainly raise the critical issues on which the application may turn, (Kioa v West (1985) 159 CLR 550 (“Kioa”) at 587) an applicant need not necessarily be informed of the precise nature of the matter that the decision maker might take into account and nor does procedural fairness require that the applicant have an opportunity to comment on every piece of adverse information irrespective of its credibility, relevance or significance (Kioa per Brennan J. at 628)

4. To the extent also that this is a complaint about an adverse conclusion by the Tribunal, the Tribunal is not required to invite comment on its thought processes in the making of its decision (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [54] per Kirby J.). But equally, it is also clear that at general law an applicant should not be left “in the dark” as to the likelihood of an adverse finding being made and thus be deprived of an opportunity to put before the decision maker any additional material. On the material before me however, I cannot see that the applicant was left in the dark as to this issue, or was unaware of the likelihood of its arising in some fashion in the Tribunal's decision:

   1)This issue with raised by the Minister’s delegate in his decision record and was part of the reason for refusing the grant of the visa. The delegate’s decision record is reproduced at CB 37 to CB 41. At CB 40.7 the delegate stated:

   “He did not apply for a Protection Visa until he had been in Australia for almost three months on his second trip here, just three days before his temporary visa was due to expire, rather than do so immediately he arrived here. I am unable to accept that this would be the behaviour of a person who has a genuine fear of persecution in his home country.”

   2)That he was aware that this was an issue is evident from the applicant’s statement in his application for review to the Tribunal where at CB 48.3 he stated:

   “My situation has been changed since my arrival in Australia and with such change I decided to apply for refugee status in Australia. This is also the reason why I applied later - months after I arrived in Australia”

5. Far from being left in the dark about this issue the applicant was clearly aware of it and specifically addressed it and provided the explanation for his action. In essence, this was that he had developed a greater degree of belief in Falun Gong and had received information by way of his brother's letter from China that it was not safe for him to return as it was know that he had become a “firm anti-CCP dissident as well as a Falun Gong believer” (CB 48.4).

   1)What remains is that this complaint in the amended application really amounts to a complaint that the Tribunal did not accept the “evidence” that was the explanation that he gave as to the delay in applying for protection once he had come to Australia on the second occasion. In all the circumstances, I cannot see there has been a denial of procedural fairness/natural justice at general law in this regard. The applicant was on notice of this issue and gave an explanation and the Tribunal. For the reasons that it gave, the Tribunal did not accept that explanation. In the circumstances before it, this was open to the Tribunal. 

   2)The second particular in relation to the first ground of complaint in the amended application is a failure of natural justice/procedural fairness obligations to the applicant in the Tribunal allegedly failing to evaluate the relevance of the letter written by the applicant's brother which “confirmed” that the applicant would be at risk of persecution if he returned to China. The amended application does not make it clear how this is a breach of the procedural fairness obligations and the way that the particular is drafted, suggests the real complaint is that the Tribunal failed to take the “relevance of a letter” into account. The Tribunal in its decision record (at CB 68.7) made specific reference to the letter from the applicant's brother:

   “The applicant claims the reason he did not apply for refugee status earlier was that his situation changed after he came to Australia and he now is a political dissident and a Faulungong believer. The applicant enclosed a letter from his second eldest brother. The letter indicates that the applicant has been recorded at the local police station and that the local police have called at the family home to question family but the letter does not indicate what the family has been questioned about.”

   3)It is clear that the Tribunal did not ignore the applicant's brother's letter. However, while the applicant's amended application asserts a failure of procedural fairness as a ground and this particular appears to assert that the Tribunal failed to consider or alternatively failed to give appropriate weight to the letter, in that sense it can be seen to be a different ground of complaint. The applicant therefore may be seen through the amended application to complain that by not specifically referring to the letter in its “Findings and Reasons” the Tribunal failed to consider a piece of evidence put forward in support of the applicant’s claims, or alternatively did not give the evidence appropriate weight. The brother's letter (CB 49) related to issues of the Chinese government's attitudes and actions in relation to political dissidents and also made reference to Falun Gong believers being required to report to the PSB. While this information talks generally of the government's attitudes and actions towards political dissidents and some aspects of its actions in relation to Falun Gong believers, the Tribunal in looking at the applicant's claims (that is the claims as they related to him personally) found that the applicant had provided so little detail and insufficient evidence that it could not be satisfied on what was before it that the applicant had a well founded fear of persecution for a Convention reason. This is precisely what the Tribunal had told the applicant in its letter of invitation to the hearing. On one view, and a fair reading of the Tribunal's decision record, given that the Tribunal specifically recounted the letter as part of the evidence before it, it can be reasonably and clearly inferred that the Tribunal’s reference to insufficient evidence before it encompassed the matters raised in the letter provided by the applicant's brother. It is also open to say that having found that the applicant's claims, specifically as they related to him and actions and harm that had occurred to him, were so lacking in detail that any general information about what the Chinese government was doing to political dissidents and Falun Gong believers was in that sense not relevant to the Tribunal's consideration given that it found that it could not be satisfied that the applicant had been involved with political dissidents or that he had become involved with Falun Gong in Australia. On either view the applicant's complaint is not made out. In relation to the issue of weight to be given to this letter, this is of course a matter for the Tribunal.

6. The second complaint in the amended application is that the Tribunal misunderstood and misrepresented the applicant's claim of imputed political opinion. This is particularised as the Tribunal having incorrectly characterised the applicant's claims as based on a dispute with his former employer and a failure by the Tribunal to “acknowledge” that the former employer was a Chinese Communist Party leader. In his application for a protection visa, in an attached statement (at CB 24 to CB 26), the applicant at CB 25.2 stated that his problems arose after he returned to China from Australia and that the problem was that he was refused employment. He makes reference to an argument with his boss who he describes in parenthesis as a “Chinese Communist Party leader” and makes reference to an altercation with his boss and the threat made by the boss that he would report him to the Chinese security authorities. While the Tribunal in its “Findings and Reasons” does not make any specific reference to the “boss being a Chinese Communist Party official” the Tribunal clearly addressed the critical elements in the applicant’s claims (it should be noted that in his application for review to the Tribunal, in his attached handwritten statement, the applicant made no reference to his boss, let alone that he was a member of the Chinese Communist Party). But, in any event, in dealing with his original claim, the Tribunal clearly focused on a plain reading of his claims on what was the central thrust, that he was denied re-employment on his return and that there had been some sort of physical altercation and that this led to him, amongst other things, being fearful of returning to such a situation. The Tribunal clearly found that in the context of all of his claims as presented, there was insufficient information and lack of explanation and it was unable to reach the requisite level of satisfaction. The Tribunal's characterisation of the dispute with his former employer clearly in my view is an accurate reflection of exactly what the applicant had put in his application. The applicant had stated that he had argued with his boss and that there had been an argument which included ideological differences, and that he had said things against Chinese government officials and that the boss had threatened to report him. It was certainly open to the Tribunal to view this episode, and did view it consistent with the way the applicant presented it. A reference to the “boss” as being a Chinese Communist Party leader but nothing further, does not reveal that the Tribunal misrepresented the applicant's claim. Centrally the Tribunal invited the applicant to a hearing to provide further information and detail in relation to his claim. The applicant was on notice that all of his claims lacked sufficient detail and he chose, without explanation, not to take up the offer provided by the Tribunal to provide further detail and elaboration on what he had provided which he now claims the Tribunal ignored. In all this complaint also does not succeed. 

7. The third complaint in the amended application is that the Tribunal failed to consider that the applicant would face persecution if he returned to China because of his membership of Falun Gong. It is particularised by the claim that he had a long-term familiarity with Falun Gong and his expressed fear of persecution should have been sufficient to satisfy the Tribunal. The applicant is correct when he contends that the Tribunal was under a duty to determine his application, but there is no duty on the Tribunal to uncritically accept a mere statement by the applicant that he has a fear of persecution for a Convention reason. The Tribunal did “determine the claim” but it is a matter for the Tribunal as to whether the requisite level of satisfaction can be achieved given what the applicant has put before it. Simply, this Tribunal could not be so satisfied. This was a finding that was open to the Tribunal, based on the information before it. I can see no error in this regard. 

   Jurisdictional Error

8. However, the respondent conceded in submissions that the Tribunal’s decision is affected by jurisdictional error in that there was a failure to provide information in writing to the applicant, pursuant to its obligations under s.424A of the Act. With reference to SZEEU, the respondent referred specifically to the Tribunal’s findings that the applicant was able to depart China without difficulty and accepted that this was based on information provided by the applicant to the respondent’s Department in his application for a protection visa. The respondent conceded that such reliance on the information provided in the protection visa application was required to be put to the applicant pursuant to s.424A of the Act. I note that the current form of s.424A became operational on 10 August 2001 (Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act NO. 58, 2001) and post dated the Tribunal’s decision. However, in the version of s.424A in existence at the relevant time s.424A(1) was identical. Section 424A(2) provided however that (where the applicant was not in detention) the Tribunal was required to send the letter of invitation to the applicant (to comment on information on which it relied on making its decision) by one of the methods specified in s.441A of the Act. I accept the respondent’s submissions that jurisdictional error occurred and the implication that the relevant principle as set out by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) and the Full Federal Courts in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and SZEEU required the invitation to comment to be sent to the applicant in writing. No such letter was sent.

9. I also accept the respondent’s submissions in relation to the Tribunal’s reliance on the extract of the Tribunal decision where it noted that the applicant’s delay in making the protection visa application was an issue that led it to state that the delay was “an indication that the depth of the applicant’s fear of persecution was not significant” (CB 70.1). The applicant resubmitted this information and his explanation for the delay to the Tribunal in the application for review lodged with the Tribunal. The fact of the delay was clearly put before the Tribunal. As such it would fall within the exception provided in s.424A(3)(b) from the requirements set out in s.424A(1) of the Act.

10. Given the respondent’s concession, it is not necessary to examine further whether the first finding by the Tribunal was the reason or part of the reason for the decision. The respondent conceeds jurisdictional error.

    Delay and the exercise of the Court’s Discretion

11. Notwithstanding this concession, the respondent pressed that the Court should decline in the exercise of discretion its discretion, to grant the relief sought by the applicant. This was on the basis of the extended and unexplained delay in the commencement of these proceedings. The respondent submitted in written submissions filed on 4 April 2006 that the delay in bringing the proceedings was more than five years and five months after notification of the Tribunal's decision. The respondent's submissions correctly point out that at that time, that is up until the time of the hearing, the applicant had not put forward any evidence to explain the delay in seeking to initiate the proceedings now before the Court (I should just note at this stage that at the commencement of the hearing before me, I gave the applicant an explanation of the relevance of this issue to the ultimate determination of his complaint before this Court). However, I also note that the applicant’s written submission made reference to certain events which were also not put before me by way of evidence or relevant materials. In submitting that the applicant had failed to put forward any evidence to explain the delay in seeking these proceedings the respondent noted that the applicant had made a “second” approach to the Tribunal. Further, during cross examination of the applicant by Ms. Palmer, reference was made to a request to the Minister for Immigration pursuant to s.417 of the Act. This also had not been put before me in any evidentiary context. Further, it was also clear that the applicant had not focused on the issue of delay as being relevant to his claim before the Court (although I note the applicant did receive some legal advice). In all the circumstances, I felt it appropriate that I give the opportunity to both parties to submit to the Court any further relevant documents and evidence that they wished to put before the Court. I gave the respondent until 18 April 2006 to put before the Court any further relevant material or evidence and gave the applicant a further week to put forward any further evidence or submissions. Nothing further was received from the applicant. The respondent provided:

    1)A Supplementary Court Book (“SCB”) filed on 18 April 2006.

    2)The affidavit of Ellie Jane Palmer, a solicitor in the employ of the respondent's solicitors, sworn on 18 April 2006 with annexures.

    3)The affidavit of Simon Shijie Feng sworn on 18 April 2006.

    4)The affidavit of Jonathan Christian Willoughby-Thomas sworn on 18 April 2006.

    5)The respondent's further written submissions filed on 20 April 2006.

12. To obtain a better understanding of the evidence given by the applicant at the hearing before me, and in particular in answers to questions under cross examination, it is first preferable to note the following arising primarily from the subsequent material filed in Court by the respondent. The chronology of relevant events are:

    1)The application for review was lodged with the Tribunal on
    8 November 1999 (CB 43).

    2)In that application the applicant advised the Tribunal that he had a migration agent whom he had authorised to act for him in relation to the application. This was “Simon S. J. Feng” (CB 44).

    3)On 16 March 2000 the Tribunal wrote to the applicant at his address for service which was given in his application for review (CB 44) as the same as his home address (as I have stated above, both the application to the Tribunal and the date of decision and handing down of the Tribunal's decision record all predate the introduction of s.441G dealing with authorised recipients).

    4)On 30 March 2000 the Tribunal received a response to its hearing invitation on the appropriate form, indicating that the applicant did want to attend the hearing (CB 58).

    5)The applicant did not attend the hearing scheduled for 1 May 2000 (CB 59).

    6)The Tribunal proceeded to make its decision and on 5 May 2000 sent a letter to the applicant by registered post with a copy sent to the applicant's migration adviser, advising the applicant that a decision had been made in his case and that the decision would be handed down on 17 May 2000 (CB 60 to CB 61). I note relevantly that this letter was sent to the applicant’s address for service as provided in the applicant’s application to the Tribunal. Relevantly, there is nothing before me to show that this letter was returned to the Tribunal as undeliverable (nor has the applicant made any such assertion but see below).

    7)On 17 May 2000 the Tribunal again wrote to the applicant at the address for service by registered post with a copy sent to the applicant's migration adviser, advising the applicant that the Tribunal had decided that the applicant was not entitled to a protection visa, and enclosing a copy of the Tribunal's decision and reasons (CB 63 to CB 64). The letter made reference to the applicant's right to seek review of the Tribunal's decision by the Federal Court.

    8)There is nothing in the material before me to show that the letter sent to the applicant’s address for service, which was also his home address, was returned as undeliverable to the Tribunal. Nor that the copy sent to the applicant’s migration adviser was returned as “undeliverable”.

    9)The evidence before me, by way of the affidavit of Jonathan Christian Willoughby-Thomas, a District Registrar of the Tribunal, sworn on 18 April 2006, refers to the letter of notification of the Tribunal's decision (a copy of which appears at CB 63). By way of annexure the evidence is that according to the Tribunal's postal records (see annexure “A” to the affidavit) the letter was sent to the applicant’s address, as provided by the applicant. The registered post number contained in the postal record corresponds with the registered post number indicated on the copy of the relevant letter in the Court Book. The letter sent to the migration adviser was sent by ordinary post.

    10)By affidavit sworn on 18 April 2006 the applicant’s then migration adviser, Simon Feng, states that he drafted a letter pursuant to s.417 of the Act addressed to the then Minister for Immigration, that this letter was signed by the applicant and that on the instruction of the applicant it was sent to the Minister for Immigration. The letter was dated 12 May 2000. At paragraph 2(a) the affidavit states that the letter was dated “12 May 2000”. The copy of the letter at annexure “A” shows the date 12 May 2000. The copy of the letter also reproduced a stamp indicating that this letter was received by the Minister’s Department on
    “22 June 2000” (the applicant denies any knowledge of this letter - see further below).

    11)On 3 June 2005 the applicant filed another application for review with the Tribunal (see SCB 1). The Tribunal, differently constituted, decided on 8 August 2005 that it had no jurisdiction to consider the “second” application for review. Further, it was received by the Tribunal outside the mandatory time limit (the Tribunal was satisfied that the “second” application was received more than five years after the prescribed period had expired: SCB 12 to SCB 17).

1. In relation to the applicant’s delay in filing his application to this Court, (between 3 May 2000 when the Tribunal’s decision was made and the filing of the originating application to this Court on
   24 November 2005) the applicant gave evidence and the following relevantly emerged during cross-examination by Ms. Palmer:

   1)The applicant stated that he did not receive the letter notifying him of the Tribunal’s decision (dated 17 May 2000).

   2)He stated that he was still residing at the home address in May 2000 (which he had provided to the Tribunal in his application).

   3)He stated that he did receive a letter “in 1999” inviting him to the Tribunal hearing. He confirmed this was sent to his Arncliffe home address (the address for service provided in the application for review) and that upon receiving this he went to his “lawyer” (I understood this to be a reference to his migration agent) so it could be translated to him. This date appears to be a reference to the Tribunal’s letter of 8 November 1999 [CB 54 to CB 55]. Subsequently, the applicant confirmed he was referring to the letter of invitation to hearing and he attended his agent’s office a month later in April 2000.

   4)When pressed, he specifically denied any knowledge of the Tribunal’s decision in May 2000. He stated that he had heard nothing from his agent.

   5)The applicant denied any knowledge of any letter sent to the then Minister for Immigration on his behalf in May 2000 (or any other time).

   6)Specifically he stated:

   i)When shown a copy, that the signature at the bottom of the “s.417” letter did not look like his signature.

   ii)That he had never asked anyone to write to the Minister on his behalf.

   iii)That he had never seen this letter before attending Court now. Subsequently during cross-examination he stated: “I think it’s the lawyer [the migration agent] who wrote it for me.”

   7)He became aware of the adverse Tribunal decision in February 2004 when he was taken into detention and informed by an officer from the Department of Immigration (through a telephone interpreter) that he had become “illegal”.

   8)He insisted that he knew nothing about what was happening with his review before the Tribunal from the time he received the invitation to hearing letter (March 2000) and being taken into detention by the first respondent’s Department (February 2004).

   9)Between speaking to his “lawyer” about the “Invitation to Hearing” letter, and being taken into Immigration Detention, he had “been to him [the agent] during that time”, and that if he had received any “news” from the Tribunal he would have “let me know.”

   10)When pressed as to what contact he had with his agent during this time he stated:

   i)That in 2001 he saw his lawyer in a restaurant in Ashfield “with a young girl.” When pressed by Ms. Palmer about whether he had approached him the applicant indicated that “we just nodded to each other at the door. He didn’t say anything about it because he was with this girl. He left very quickly.”

   ii)He attended his adviser’s office twice in the period between 1999 and up to his being taken into Immigration Detention.

   iii)His evidence was:

   “After going to him with that letter [in context the letter of invitation to the Tribunal’s hearing] on another occasion I came to the city just for some fun. I walked past his office, I went in to say hello. He said he still hadn’t got any news for me. But after that I moved to Auburn and I got a car so I have not been anywhere near him.”

   iv)This visit would have been in April 2000.

   v)His move to Auburn was “maybe in 2003”.

   11)Ms. Palmer pressed the applicant whether, and aside from the one specific visit described, and after the visit to the agent’s office in April 2000, there was any further attempt to contact the agent or if there had been any contact from the agent. The applicant answered that “whenever I went to the city I would go to his office and ask about the situation and he said nothing. Anyway, I don’t remember when but when I was in the city anyway.”

   12)When asked whether this conflicted with his account of visiting his agent “twice” he said that this was not contradictory as it was “just twice or three times between 2000 and February 2005” as he rarely went to this city. [Although given he was in Immigration Detention from February 2004 this is probably a mistaken reference to February 2004].

   13)Ms. Palmer asked to the applicant whether he thought it “strange” that in four years he had not heard anything from his adviser. The applicant replied that he had been “waiting and waiting” and as he had already said, only “went to his office when I happened to be in the city and I went there by train just to have some fun” and that he was relying on the agent as the agent had told him that “when he got some news he would let me know.”

   14)He confirmed he did not telephone the adviser to check on the progress of his application.

   15)He confirmed that he was detained (by the first respondent’s Department) in February 2004 but that he did not make his application to this Court until November 2005. In relation to this delay of “almost” two years (between being told of his unsuccessful application to the Tribunal and his application to this Court) the applicant stated during cross examination by Ms. Palmer that he had not applied to the Court earlier as a departmental officer had told him that as he had already “been to a Court when you were outside” that he “can’t do it anymore.”

   16)He then gave evidence that some time later his immigration officer changed and he was informed that “if you want to continue you can” and it was this that prompted him to come to this Court.

   17)Ms. Palmer through cross examination attempted to establish when exactly the applicant spoke to this “second officer” who informed him that he could apply to the Court.  Ms. Palmer’s questioning attempted to establish a sequence of relevant events with the applicant.  This proved difficult. The applicant’s evidence was variously that during his time in Immigration Detention leading up to the application to the Court in November 2005, he had two, then later said “further” case officers assigned to him.

   18)At best his evidence up to that point was that it was in early November 2005 that he was told that he could apply to the Court.

   19)This contradicted other evidence that he gave that he was assigned a “second case officer” some “two or three weeks” after being taken into detention in February 2004 and that “its about two weeks after I told the first one that I want to go to Court, they charged to another case officer”.

2. The respondent submits that notwithstanding the jurisdictional error in the Tribunal’s decision, that as the applicant has delayed in bringing the judicial review proceedings for over five years and five months, and further that as no satisfactory explanation for the delay has been provided, that the Court should decline to exercise its discretion to grant the relief sought. The respondent submits that the delay is significant, and should lead to the denial of the favourable exercise of the discretion “even if the applicant would otherwise be entitled to it”.

3. I note generally in this regard that the application may be dismissed on the grounds of unwarrantable delay without deciding the merits of the applicant's alleged grounds of review. (R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ. at 568 and 570. See also S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283). Unwarrantable delay clearly justifies the withholding of relief: TheKing v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Australia) Ltd (1949) 78 CLR 389 at 400. It is well accepted that relief under s.75(v) of the Australian Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Re Minister for Immigration and Multicultural and Indigenous Affairs and; Ex parte Applicants S134/2002 [2003] HCA 1. In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 the High Court confirmed that the constitutional writ of prohibition is discretionary and held that prohibition and mandamus should issue in that case. At [52] Gaudron and Gummow JJ. said:

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

4. I also note McHugh J., in the High Court decision of 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.”

5. In this case however, given the concession of jurisdictional error in the Tribunal’s decision by the respondent, the issue remains whether this error should lead to the applicant receiving the relief that he seeks. The respondent in this regard refers to SZDSJ v Minister for Immigration [2005] FMCA 160, a Judgment of Smith FM, that involved the refusing of relief to an applicant, where there had been jurisdictional error, because of a delay of seven years in applying for judicial review. His Honour at [14] to [17] said:

   “[14] The issue which was argued before me concerned whether relief should be refused in the discretion of the Court, taking into account the applicant's delay in commencing the present proceedings.

   [15] This issue raises two considerations which have been identified by the High Court. On the one hand is the principle to which Gaudron J refers in Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57 at [106]: "Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that "[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers" (also see McHugh J [152] and Kirby J at [215-222], and Kirby J in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [140]). These statements suggest a prima facie entitlement to judicial recognition of a failure validly to exercise a power given to an administrator.

   [16] The principle is, however, qualified, as Gaudron J's statement indicates, by a discretion to refuse relief notwithstanding the identification of jurisdictional error. Guidance on the circumstances where this should be exercised is found only in general statements confirming that the Court may refuse relief if an applicant is "guilty of unwarrantable delay" so as to "make it just" that relief by way of mandamus should be withheld (c.f. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; see also R v Australian Broadcasting Tribunal; ex parte Fowler and Ors (1980) 31 ALR 565 at 570), and that delay may make it "the proper approach" to refuse relief by way of prohibition and certiorari (c.f. Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194, adopted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [51-3] with whom Gleeson CJ and Hayne J agreed, and by Kirby J at [148-9]. See also the discussion of Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222 at [28]-[31]).

   [17] Further insight into how delay should be addressed is difficult to find in the authorities, but in my view an important consideration explaining the reason why the Court is concerned about delay was identified by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6: "Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases." (applied in Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132), and cited in Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489).”

6. His Honour Smith FM went on to consider whether the explanation for the delay provided by the applicant was sufficient to justify the granting of the relief and found that the length of time was “inherently unacceptable” and the explanation given for not seeking legal advice sooner  was also unacceptable. In these circumstances relief was denied.

7. In SAAP the majority found against the Tribunal in circumstances where the Tribunal failed to comply with a mandatory provision contained in Division 4 of Part 7 of the Act. While the majority found the Tribunal’s failure in that case had been a breach of the obligation to accord procedural fairness under the relevant statutory provisions and that therefore there was jurisdictional error, the Court allowed for the possibility that the relief may be withheld in the exercise of the discretion. However, the Court found that there was no such reason evident in that case to do so. McHugh J. (in an extract already quoted) at [80] said:

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

   Hayne J., at [211] stated:

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

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

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

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

8. In terms of the actual time of the unexplained delay it has been held that a delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion (see Re Commonwealth of Australia & Anor; Ex parte Marks (2000) 177 ALR 491 per McHugh J. at 495. But as Stone J. said in Applicant S1338 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 53 this is not just an arithmetical exercise.

9. The Tribunal's decision was made on 3 May 2000 and handed down on 17 May 2000 and was sent to the applicant's address for service by registered post. The application to this Court was made on
   24 November 2005. The total period of the delay relied on by the respondent is therefore five years and five months. The applicant's explanation for the delay in bringing his complaint about the Tribunal's decision to the Court is that from April 2000 following receipt of the Tribunal's letter of invitation to a hearing, until February 2004 when he was taken into Immigration Detention, he had neither heard nor received anything from the Tribunal or his migration agent to notify him that an adverse decision had been made in his case. I have difficulty in accepting the applicant's evidence in this regard:

   1)The evidence before me by way of the annexures to the affidavit of Jonathan Christian Willoughby-Thomas, the District Registrar of the Tribunal, is that the Tribunal sent the letter notifying the applicant of its decision in May 2000, by registered post, to the applicant's address for service which was also his home address. In evidence before me, the applicant confirmed that at the relevant time, and for nearly three years later, this address remained at his home address. The applicant was not able to provide any explanation whatsoever as to why a letter sent by registered post to his home address (which also served as his address for service) would not have been received by him.

   2)In evidence given before me the applicant also denied any knowledge whatsoever of the letter sent to the then Minister for Immigration dated 12 May 2000, and received by the Minister's Department on 22 June 2000, seeking the Minister’s intervention pursuant to s.417 of the Act. The letter (annexure “A” to the affidavit of Simon Shijie Feng of 18 April 2006) makes a clear reference that the applicant's application to the Tribunal “to be classified as a refugee” was rejected. The letter states that the applicant sought to appeal to the Minister to personally review his case on humanitarian grounds and to favourably intervene on his behalf (I should just note that the letter was dated 12 May 2000 and while this postdates the day of the Tribunal decision (3 May 2000) it precedes the date of the handing down of the Tribunal's decision (17 May 2000). The clear statement contained in the letter however makes it clear that the drafter of the letter certainly asserted that the application to the Tribunal had been rejected. Further, the date of receipt of this letter by the Minister's Department was well over a month later following the handing down of the Tribunal's decision. This period is consistent with the time needed for receipt of the letter either by the applicant or his adviser and for a response to have been drafted and sent to the Minister's office.

   3)I accept the applicant's evidence to the extent that he asserts that he did not draft this letter and even that he may not have known some of the detail contained in it. Even some 6 years later when he appeared before me, the applicant when giving evidence did not present as being capable of drafting such a letter. However, that the letter related to the applicant and was received by the Minister's Department is not in dispute. The applicant conceded in evidence before me that he now thought that the migration agent may have written the letter for him. In this regard I accept that the evidence of Mr. Feng that he drafted the letter and did so at the instruction of the applicant and that it was signed by the applicant. Further, the evidence of Mr. Feng that such a letter would have been considered as a separate process to the application to the Tribunal, for which a separate charge would have been made to the client, is consistent with Mr. Feng's evidence that he acted on instruction of the applicant. In all these circumstances therefore, I accept the respondent’s submission that the applicant would have known of the Tribunal's adverse decision in 2000 and would generally have known of the reason for the letter being sent, even if he was unaware of the detail of what it contained in support of his request to the Minister.

   4)Further, I have difficulty with some aspects of the applicant's evidence before me. Particularly in relation to the issue that notwithstanding that he had a migration agent (and that he claimed to have seen the agent on one version twice since March 2000 and on another version two to three times between 2002 and 2005) that he left everything to his agent and his agent did not tell him that the Tribunal had rejected his application. To the extent that the applicant gave evidence that he saw his agent up until 2005 (although given that he was in detention from February 2004 “up until” 2004 appears to be the more applicable) this is inconsistent with evidence given by Mr. Feng who asserts that he was a migration agent during the period 1995 to 2001. This is clearly inconsistent with the applicant's assertion (to the extent that sense could be made of his contradictory evidence) that he would have visited his migration agent after 2001.

   5)But even without this evidence from the migration agent, the applicant's own evidence was unsatisfactory in this regard. I did not see the applicant as someone of below average intelligence and nor were there any apparent difficulties with the level of translation provided at the hearing before me. The applicant’s confusing and sometimes contradictory evidence (particularly in the absence of any other obvious factor to explain it) did not provide a level of confidence in the truth of what he was asserting. Further, it is difficult to accept that an applicant who was fearful of their life if they were to be returned to China, would take such a blasé attitude and such little action in ascertaining from his agent the outcome of what on the face of it would have been for him an extremely important decision by the Tribunal affecting his life and liberty. On his own assertion, he only made contact with his agent when he was in town “for fun” and that he only attempted to contact his agent on two or even three occasions over a period of nearly a four years, is inconsistent with someone who is a fearful for their life. In all therefore, I do not accept the applicant's evidence that he did not receive the letter from the Tribunal notifying him of the decision. I accept that the agent at least received a copy of this letter and I accept the applicant gave some instruction for the drafting and sending of the “417 letter” following the rejection by the Tribunal. In all, the applicant's evidence as to the paucity of his action in the ensuing years is, in my view, far more consistent with someone who had knowledge of the Tribunal's adverse decision but chose not to take any action to challenge this decision beyond the sending of the “s.417 letter”.

   6)In any event what is also clear, to the extent that any of the applicant's evidence provided any certainty as to what he was asserting, is that in February 2004 when he was taken into detention by the first respondent's Department, he was told that his Immigration status in Australia was no longer that of someone who had permission to remain in Australia and that this was consistent with his application to the Tribunal having being refused at some time earlier. The applicant's evidence as to his inaction in bringing the complaint about the Tribunal's decision to this Court nearly 21 months later was not credible. The applicant gave a confused and at times contradictory account of a number of alleged conversations with immigration offices while he was held in detention, but ultimately provided no explanation as to why he waited for such a long time after he had been advised that the Tribunal's decision was adverse. While I note the affidavit of Ellie Jane Palmer of 18 April 2006 annexing various file notes made by officers of the first respondent's Department, it is not necessary to rely on any of this material to find that the applicant's own evidence was unsatisfactory in providing an explanation for the delay in bringing the matter before the Court over the period from February 2004 to November 2005. Nor is there any explanation from the applicant as to why he waited until June 2005 to make a second application to the Tribunal, if indeed this was the avenue that he felt was the appropriate avenue to take in challenging the first Tribunal's decision.

1. In all therefore, I am satisfied that while the respondent has conceded that the Tribunal's decision is affected by jurisdictional error, that the applicant’s long delay (whether this delay is seen from May 2000 till February 2004 or indeed from February 2004 to November 2005 or the totality) is unexplained and given that both periods of delay are unacceptable, and that no acceptable explanation has been given to the Court as to why the action now taken was not taken at some earlier time, in all these circumstances the relief the applicant seeks should not be granted. Accordingly, I dismiss the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  6 June 2006