Applicant S1338 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

3 On 16 October 1995, the Tribunal affirmed the delegate's decision that the appellant was not entitled to a protection visa. On 27 June 1997, the appellant apparently joined a class action seeking judicial review of the Tribunal's decision. This proceeding was ultimately dismissed by Emmett J on 20 February 2004: see Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289. On 24 September 2004, the appellant filed an application under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court. 4 The delays evident in this chronology are of particular significance to the present appeal. In particular, it is significant to note that the appellant waited some twenty months before joining the class action and, following the dismissal of his application by Emmett J, a further seven months before commencing proceedings in the Federal Magistrates Court.

5 The Tribunal found that the appellant's fear of persecution upon his return to Fiji was not well founded for the following reasons: (a) the appellant was not the victim of conduct that was sufficiently serious to amount to persecution within the meaning of the Refugees Convention; (b) the breakdown of law and order, and the circumstances of general insecurity following the 1987 coups in Fiji, did not amount to persecution and, in any event, independent country information indicated that political stability had now been restored to Fiji; (c) independent country information indicated that there was no real chance that the appellant would be subject to persecution because of his membership of the Labour Party; (d) while the Fijian Constitution was discriminatory against non-indigenous Fijians in many respects, such discrimination would not affect the appellant personally and accordingly did not constitute a valid basis for refugee protection; and (e) the appellant's unwillingness to return to Fiji for economic reasons was not Convention related. Accordingly, the Tribunal concluded that the appellant was not a refugee and was not entitled to a protection visa.

Proceedings in the Federal Magistrates Court 6 The Federal Magistrate, before addressing the merits of the application, considered the periods of delay referred to above. Mr Silva, the appellant's solicitor, argued before the Federal Magistrate that the appellant had twice sought the first respondent's intervention under s 417 of the Migration Act 1958 (Cth) ('the Act') and that this was justification for the two periods of delay. He argued that this was a cheaper and less complex option than pursuing judicial review. 7 The Federal Magistrate was not persuaded by the arguments advanced on behalf of the appellant. His Honour stated at [8]: 'The clear general principle applicable in this situation is that if there is a legal issue to be tested, then an aggrieved person should not delay in proceeding to have that issue tested. I do not accept Mr. Silva's argument that there should be a suite of options available to people such as the applicant before me, on the basis that in the life and death situations, as he put to me, that cheaper and less complex options should be undertaken first. I do not see that a raft of options was properly available to the applicant. The request to the Minister is for the Minister to exercise her non compellable power to substitute a more favourable outcome for the applicant than the decision by her delegate who refused the protection visa, as affirmed by the Tribunal. Neither the request nor any intervention by the Minister can be seen as any sort of ventilation of any legal issues involved. The only "option" available to a person aggrieved by a Tribunal decision who wishes to raise legal issues is to go before a Court. It is inconsistent that an applicant, in Mr. Silva's words, who is in a "life-and-death situation" and who feels that the Tribunal has erred in law, does not to [sic] go as soon as possible to the one place that can provide the relief in relation to legal issues. The applicant has not argued some ignorance of the availability of the Courts to provide relief in relation to legal issues. In fact the opposite is the case. The applicant did participate in other proceedings before the Courts. But in relation to the specific period of delay now being relied on by the respondent, and its two constituent periods, the applicant clearly knew throughout these periods that the Court option, as Mr. Silva puts it, was always there. Further, I also note that as Mr. Reilly submitted that the relevant authorities do not regard a request pursuant to s.417 as any sort of explanation for delay. Indeed he argued, that the effect of the relevant authorities is that the making of a s.417 request essentially indicates an acceptance of the legal correctness of the decision, and an attempt to have the decision changed in some other way. The applicant chose to pursue another course of action while knowing that the relevant course of action in seeking legal redress was to go before the Court. In all these circumstances, and in particular given the length of time of the delay (well over two years) it is appropriate that in the exercise of the discretion, in the context of the relief sought by the applicant, that the relief sought should be refused. The application is dismissed on this basis.'

8 The Federal Magistrate nevertheless proceeded to examine the merits of the appellant's claims. The appellant ultimately pressed three grounds of review however, on this appeal, his Honour's decision on the third ground is not challenged. Therefore it is only necessary to consider his Honour's decision on the following two grounds: 1. The Tribunal failed to deal with an important claim made by the appellant (that is, the ban on practising religion on Sunday) and therefore made a jurisdictional error. 2. The Tribunal made jurisdictional errors in interpreting what is meant by 'serious punishment' and in holding that what the appellant suffered was not persecution. 9 In respect of the first ground of review, it was submitted on behalf of the appellant that the Tribunal had incorrectly focussed on the role of the government in preventing the appellant from attending religious services when, in fact, his claim had been that private individuals, namely ethnic Fijians, had stopped him attending. Based on the transcript of the hearing before the Tribunal, which was in evidence before his Honour, the Federal Magistrate held that the Tribunal understood the appellant's claimed fear of harm. His Honour held, at [11], that the Tribunal rejected this claim by finding that the instability which led to the actions of harm taking place no longer existed and that the judiciary and police could be relied on to provide adequate protection. 10 In relation to the appellant's second ground of review, his Honour held that the Tribunal's finding in this regard must be seen in the context of its ultimate conclusion that the appellant's claims originated from the breakdown of law and order following the political unrest in 1987. The Federal Magistrate noted that the Tribunal found that this insecurity had disappeared and political stability had been restored. For this reason, his Honour held that, whatever the level of harm as seen by the Tribunal, it found that there was adequate State protection (as at the time of the decision) and, in any event, that the circumstances which gave rise to the appellant's claims no longer existed in Fiji.

THIS APPEAL 11 On 10 October 2005, the appellant filed a notice of appeal from his Honour's judgment. At the hearing I gave the appellant leave to file in Court an amended notice of appeal which raised the following grounds: 1. The Federal Magistrate erred in exercising his discretion to dismiss the matter based on delay in starting proceedings. 2. The Federal Magistrate erred by not holding that the Tribunal made a jurisdictional error in interpreting what is meant by serious punishment and held that what the appellant suffered was not persecution. 3. The Federal Magistrate erred by not holding that the Tribunal failed to deal with an important claim made by the appellant.

Consideration 12 The Federal Magistrate dismissed the application and explicitly based his decision on an exercise of his discretion in relation to the appellant's delay. For this appeal to succeed therefore, the appellant must satisfy the Court that, in exercising his discretion, his Honour acted upon a wrong principle, allowed extrananeous or irrelevant matters to guide him, made a mistake as to facts or failed to take into account a material consideration: House v R (1936) 55 CLR 499 at 505. See also, NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124 ('NAUV'). 13 In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 106 ('Aala'), Gaudron and Gummow JJ, with whom Glesson CJ agreed on this point, commented that the discretion attending the exercise of jurisdiction conferred on the High Court by s 75(v) of the Constitution, in respect of the writ of prohibition, involved 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.' 14 In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, the High Court provided some guidance in relation to the factors that may guide the discretion to issue a writ of mandamus and observed at 400: 'The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognised grounds upon which the court may, in its discretion, withhold the remedy. 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…' 15 Recently, McHugh J, referring to Aala, stated in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) ALR 162 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.' (footnotes omitted) 16 The appellant's solicitor referred the Court to the judgment of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ('Miah') and the comments therein of several of the judges concerning the delay in that case. In Miah, Gaudron J stated at [106]-[107]: '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". It was put that relief should not issue in this case because of the delay involved in bringing the proceedings in this Court. The delay has been explained. In brief, the delay occurred only because Mr Miah sought to have his claims properly considered without the need to institute the present proceedings. The Minister declined to exercise powers which may have rendered the proceedings unnecessary. That being so, the argument that relief should be refused on discretionary grounds is wholly without merit.' (footnotes omitted)

See also, Miah per McHugh J at [152] and Kirby J at [219]. 17 In Miah their Honours were not articulating a principle of law to apply irrespective of circumstances. Their comments must be considered in the context of the circumstances of that case. There the delay in bringing the proceedings under s 75(v) occurred because, after the prosecutor's solicitors failed to seek review before the Tribunal in the available time, they sought an exercise of the first respondent's discretion, under s 48B of the Act, to permit the prosecutor to make a fresh visa application. The first respondent having refused, they commenced proceedings in the High Court. 18 These circumstances distinguish those in Miah from the present case. An application to the first respondent under s 48B of the Act is a request for leave to file another application for a protection visa despite the provisions of s 48A. In the present case, however, the appellant chose to seek the first respondent's intervention under the non-compellable discretion granted to her by s 417 of the Act. This application to the Minister to substitute a more favourable decision for that of the Tribunal was an alternative to judicial review of the Tribunal's decision. 19 As discussed above, there are two relevant periods of delay to consider in this matter. The first is the period of time between the making of the Tribunal decision and the appellant joining the class action. The second is the period between the dismissal of the class action and the making of the application under s 39B of the Judiciary Act. The total period of delay was approximately two years and three months. In my view, his Honour appropriately considered both these periods and was entitled to do so. As the Full Court stated in NAUV at [42]: 'In absence of a compelling reason not to do so, the Judge was at least entitled to take into account all of the facts and circumstances in the case before his Honour.' In the present case, 'all of the facts and circumstances' plainly encompassed both periods of delay. 20 Having said this, I do not consider that the question of unwarrantable delay ought to be answered simply by accumulating periods of delay in the conduct of the proceedings, without regard to the circumstances surrounding this delay; it is not a simple arithmetic exercise. The Federal Magistrate clearly considered the relevant circumstances and exercised his discretion to refuse relief on the basis that the appellant's delay was not justified. His Honour did not accept that the pursuit of a 'less complex and cheaper option' justified the delay in instituting proceedings. 21 The Federal Magistrate did not make any error such as were identified in House v R. His Honour correctly applied the principle that prerogative writ relief may be refused on grounds of unwarrantable delay. His Honour made a considered finding, based in part on the appellant's own evidence, that the appellant's explanation for the delay was insufficient to justify it. In my view there is no basis on which this Court can or should interfere on appeal. 22 Given that there are no grounds to interfere with the Federal Magistrate's exercise of his discretion and that his Honour expressly made his decision on this basis it is not necessary for me to consider the appellant's claims of jurisdictional error in the reasons of the Tribunal. I can say, however, that I have reviewed the reasons of the Tribunal and of the Federal Magistrate in the light of the substantive claims made and I do not discern any jurisdictional error in the reasons of the Tribunal. The appellant's substantive claims invite the Court to interfere with the Tribunal's assessment of the merits of the appellant's application; they do not support a finding of jurisdictional error. 23 First, there is nothing in the reasons of the Tribunal to support a claim that the Tribunal did not correctly understand the meaning of persecution; the appellant's complaints are really directed to the Tribunal's findings that the harm he alleged to have suffered was not sufficiently serious to amount to persecution. Unfortunately, this is not an issue that this Court is entitled to review. As Hill J commented in Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 271: '….where there is a matter of fact and degree involved, as there almost invariably will be when the question arises whether particular conduct amounts to persecution, the Tribunal will be the final arbiter. It is difficult not to feel sympathy for the applicant. …… This Court is not empowered to decide the merits of an applicant's claim to refugee status. Its jurisdiction is much narrower. It is empowered only to consider whether the Tribunal, in determining that it was not satisfied that the applicant was a person to whom Australia had Convention responsibilities committed a reviewable error.' 24 Secondly, the appellant submits that the Tribunal did not deal with an important claim he made, namely his claim that he was prevented by indigenous Fijians from attending the Hindu Temple on Sundays. This claim was not clearly articulated. However, as I read the Tribunal's reasons, the Tribunal understood the claim and dealt with it. The Tribunal identified the issue and concluded that what was claimed did not amount to persecution; that the Sunday Observance Decree related to commercial and recreational activities and did not hinder religious practice; and that there was no evidence that the Constitutional guarantee of freedom of religion was not being observed. The political unrest referred to above was a contributing factor to the appellant's experience but, as it no longer existed, it could not support a claim of a well-founded fear. 25 On the evidence before the Tribunal, its findings in respect of both these claims were open to it and neither this Court nor the Federal Magistrate's Court has jurisdiction to interfere with these findings. For these reasons the appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 14 February 2006 Solicitor for the Appellant: Mr T Silva

Solicitor for the First Respondent: Blake Dawson Waldron

Date of Hearing: 6 February 2006

Date of Judgment: 6 February 2006