Applicant S422 of 2002 v Minister for Immigration and Multicultural Affairs

BEFORE THE PRIMARY JUDGE 5 The primary judge noted that as more than three years had elapsed since the Tribunal's decision, the appellant required an enlargement of time in which to seek certiorari. See O 55 r 17(1) and Order 60 r 6 of the High Court Rules. The Rules do not prescribe any time within which to apply for prohibition. Her Honour referred to Applicant S422 of 2002 v Minister for Immigration and Multicultural Affairs [2004] FCA 89 at [29] ("S422") where Dowsett and Lander JJ doubted whether the time limits in r 17 are applicable when matters are remitted to this Court. For reasons the primary judge later gave, it was unnecessary for her to "choose between differing opinions about the correct characterisation of r 17". Her Honour referred to the authorities on extensions of time, and recorded the parties' submissions as to whether there was any excuse for the appellant's delay in seeking relief, but did not need to resolve that matter. Her Honour said it could be put aside: "since an application to extend time requires the consideration of the prospects of success of the applicant. Where the proposed grounds upon which relief is sought do not disclose an arguable case no useful purpose would be served in granting leave to proceed out of time."

Her Honour then dealt with the claims recorded at [4].

Exclusion from tertiary education 6 The primary judge recorded that the Tribunal accepted that the appellant is of Arab ethnicity and that in his last year at school, in 1982, he was involved in an exhibition of Arab culture at the school, which was viewed unfavourably by the authorities, and that he was briefly detained as a result. The Tribunal did not accept that the appellant was denied access to university because of the exhibition. The Tribunal accepted that after participating in a demonstration, in 1984 the appellant was detained for eight months. Her Honour set out this passage from the Tribunal's reasons: "I note [the applicant's] claim that he was excluded from university because of his profile with the authorities. The independent evidence suggests that access to university in Iran is highly competitive and that most of those who wish to obtain a university place are unsuccessful in doing so. In the circumstances, I cannot be satisfied that the reason [the applicant] was not successful in obtaining a place in university in 1986 was because he was previously in detention. I also cannot be satisfied that the applicant's wife was denied a university place for this reason in 1993. Even if [the applicant's] previous detention was the reason that [he] was not given a place at university, although denial of access to education may constitute persecution if imposed for a Convention reason (Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379 per McHugh J at 431), restricted access to higher education is not of itself normally regarded as amounting to persecution. This will occur only where restrictions which are imposed for a Convention reason amount to a significant detriment or disadvantage. (Chan, per Mason CJ at 388). According to [the applicant], he had continuous employment from the time he finished school until the time he left Iran. There is nothing in the evidence before me that suggests that [the applicant's] exclusion from university caused him any significant detriment or disadvantage." 7 The primary judge appears to have accepted the Minister's submission, founded on Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379, Harirchi v Minister for Immigration and Multicultural Affairs [2001] FCA 474 and Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260, that discrimination in access to education does not necessarily amount to persecution, and that whether any restriction on access to educational opportunities does amount to persecution will depend on the individual facts and circumstances. Her Honour was of the view that it was open to the Tribunal to find that there was nothing to suggest that the applicant was caused detriment or disadvantage by exclusion from university. 8 On this aspect of the case there was, her Honour said, "no arguable ground of jurisdictional error".

Recent political activities in support of Arab rights 9 The primary judge noted that the Tribunal did not accept the appellant's claim that he had been involved in political activities more recently than those in 1982 and 1984. It catalogued a range of inconsistencies in his evidence, which led it to conclude: "Whilst I accept some aspects of [the applicant's] evidence, I am of the view that other aspects of his evidence were internally inconsistent and inconsistent with the independent evidence before me. I consider that overall [the applicant's] evidence was not reliable. I am of the view that he fabricated some aspects of his claims in an attempt to create for himself the profile of a refugee."

Her Honour noted that adverse findings of credit which are open to the Tribunal and not perverse do not constitute an error of law: Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121. She was of the view that there was no error in the Tribunal's findings on this aspect of the appellant's claims.

Fresh evidence - opinion evidence 10 As recorded at [4], the appellant sought to rely on evidence of events that occurred after the Tribunal's decision. An affidavit by Ewan Macmillan was tendered in which he sought to give opinion evidence challenging the Tribunal's findings on three topics: Arab Iranian opposition activity, an organisation known as Gahbat Tahrir Arabistan and distribution of pamphlets by Arab Iranian activists. The primary judge refused to receive the affidavit, saying it was "irrelevant both to the relief sought on the proposed application for judicial review and to the application for leave to proceed out of time". In any event, her Honour was plainly correct to reject the evidence. The grounds of appeal do not challenge her Honour's rejection of the evidence.

Fresh evidence - refugee sur place claim 11 The appellant sought to rely on an affidavit sworn on 23 February 2004 in which he said his wife had telephoned him on 15 November 2000 and told him he had been sentenced in absentia by the Islamic Revolutionary Council to ten years punitive imprisonment and to receive one hundred and fifty lashes. The primary judge rejected this evidence on the ground that it was irrelevant to any of the appellant's grounds of review and to the application for an enlargement of time. Her Honour said: "Consistent with authority binding on me, fresh factual issues cannot be raised on an application limited to jurisdictional error unless they bear on some jurisdictional error alleged: See NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC. In any event, no arguable case of jurisdictional error has been made out." 12 The appellant also sought to rely on the fact that on 1 September 2003 the appellant's wife had told him she had been contacted by a member of the Iran security forces who told her that the appellant would be back in Iran soon and that "the applicant's name was on his list". This claim was contained in further particulars of the application, but was not supported by any evidence. The primary judge noted that this event could not have been raised before the Tribunal, and accordingly could not be raised before her as a ground for holding that the Tribunal had committed a jurisdictional error.

Primary judge's conclusions 13 In stating her conclusions the primary judge said: "the applicant's claims for judicial review of the Tribunal's decision on claims before it are not arguable. The applicant's 'fresh evidence' including evidence in respect of a refugee sur place claim which was not before the Tribunal, is inadmissible on the application as being irrelevant to any grounds upon which judicial review is sought against the Tribunal. Accordingly, the application to enlarge time within which to proceed to apply for an order nisi is refused with costs."

The formal order of the Court was "The application is refused". Having regard to what her Honour had said earlier in her reasons, her conclusions should be understood as refusing to extend the time prescribed for seeking an order nisi for certiorari on the ground that the appellant did not have an arguable case, and refusing his application for an order nisi for prohibition on the ground that he did not have an arguable case.

THE APPEAL The remittal 14 Paragraph 1 of the order remitting the matter is as follows: "That the further proceedings in this application for an Order Nisi for Writs of Prohibition and Certiorari (including the Prosecutor/Applicant's application for an extension of the time limited by rule 17(1) of Order 55 of the Rules of the High Court), be remitted to the Federal Court of Australia, Victoria District Registry." 15 Order 55 r 17 requires an application for an order nisi for a writ of certiorari to be made within six months after the date of the decision sought to be quashed. The decision was made on 24 May 2000. The application to the High Court was made on 1st July 2003. Order 60 r 6 of the High Court Rules enables the Court to enlarge the time fixed by Order 55 r 17(1). Section 44(1) of the Judiciary Act 1903 (Cth), pursuant to which the remitter was made, provides so far as material that "subject to any directions of the High Court, further proceedings in the matter … shall be as directed by the court to which it is remitted."

The power to give directions is confined to matters of procedure: Pozniak v Smith (1982) 151 CLR 38 at 44. Whether there should be an extension of time in which to make an application is such a matter. As appears from [5], whether on a bare remitter there is any role for the Order 55 limitation periods was doubted by Dowsett and Lander JJ in S422. The remitter in the present case is not a bare remitter, and there is no occasion for us to express a view about such a case.

Extension of time principles 16 In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [13] McHugh J, considering the High Court's power to extend time under Order 60 rule 6, said: "In Gallo v Dawson (1990) 93 ALR 479 I said that the grant of an extension of time under O 60 r 6 is not automatic. This is as true of an application for constitutional relief under s 75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the proceeding is for an extension of time in which to commence s 75(v) proceedings to quash an act, decision or judgment. A 'case would need to be exceptional' before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration." 17 After referring to the facts of that case, at [15] his Honour continued: "An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the 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." 18 In Marks the applicant sought to quash the decision of a tribunal made seventeen months before he filed his application for relief. McHugh J continued at [16]: "Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12, 'the rules of court must prima facie be obeyed'. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court." 19 His Honour's observations in Marks have been applied in many cases in which an extension of time has been sought to challenge decisions of the Tribunal by applications for orders nisi remitted to this Court. See, for example, Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576, Applicant A16 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 567, Applicants A64/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 568 and Das v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 489. 20 The Tribunal's decision was given on 24 May 2000. The six month period within which the certiorari application should have been made expired on or about 24 November 2000. The application to the High Court was made on 1 July 2003. Accordingly an extension of time in the order of more than two and a half years is involved. The extension is much longer than the seventeen months delay that McHugh J in Marks required the presence of "very exceptional circumstances" to excuse. 21 The appellant has offered no real explanation for his delay in seeking relief. In his affidavit in support of the application for the constitutional writs he deposes that in June 2000 he made an application to the Minister under s 417 of the Migration Act 1958 (Cth). In May 2001 the Minister informed him that he had decided not to consider exercising power under that section. The appellant then lodged a complaint with the Commonwealth Ombudsman which was not fruitful. He says he felt hopeless and tried to make contact with persons outside the Curtin Immigration Reception Processing Centre to find out if there was anything he could do or should be doing, but no help was forthcoming. The remainder of his affidavit is a commentary on various parts of the Tribunal's decision. 22 In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Weinberg J considered an application for an extension of time in which to apply for mandamus and certiorari. After referring to Marks his Honour said at [10] and [12]: "In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT's decision, for ministerial intervention pursuant to s 48B and s 417 of the Act. … In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at pars [8]-[10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time." 23 In Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 Weinberg J again dealt with a s 417 request put forward as an explanation for the delay in applying for constitutional writs. His Honour said at [18]‑[20]: "It was submitted on behalf of the respondent that the applicant's request under s 417 should be viewed as an indication that he was prepared to accept the RRT's decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course. In making that submission, counsel relied upon a series of decisions of this Court …. In Applicant A2 of 2002, von Doussa J said of the applicant that: 'having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred'. This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa,characterised as 'inconsistent courses'. It is also useful to have regard to what was said by Heerey J in Re Ruddock; ex parte LX [2003] FCA 561 at [42]: 'As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.'" 24 In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 Goldberg J said at [14] that the applicant's course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. At [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant's conduct implicitly accepted that the Tribunal's decision was not to be the subject of challenge.

Prospects on appeal 25 In relation to certiorari, the applicant's prospects of success on appeal, if an extension were granted, are very poor. We deal first with the two errors that in his written submissions he claims the Tribunal's made. These errors are not mentioned in the grounds of appeal. However, since the appellant is unrepresented, we will consider them. The first is that the Tribunal's conclusion that the appellant did not have a well‑founded fear of persecution because of his Arab ethnicity is shown to be wrong by the decision of the Tribunal, differently constituted, on 28 April 2004 in N04/48379 accepting an Arab Iranian as a refugee. This decision was given after the conclusion of argument before the primary judge. The conclusion in one case that on the evidence before the Tribunal "Arab Iranians are liable to be discriminated against" does not show error on the part of another Tribunal for deciding otherwise on the different evidence before it. The Tribunal in the present case set out extracts from independent sources about the treatment of Arab Iranians. These included the following statements: "CIS has no information suggesting Arabs in Iran are discriminated against. … Iranian Arabs are allowed to practise their culture and, as far as we are aware, do not face any specific discrimination." 26 The Tribunal said there was no indication in any of the United States Department of State's Country Reports on Human Rights Practices to which it had access, namely those published over the past seven years, that Arab Iranian groups or individuals face persecution in Iran. The lengthy submission to the Tribunal made by the appellant's solicitors, which contains extracts from independent sources, did not contain any material about persecution of Arab Iranians. 27 The Tribunal dealt with this issue as follows: "I note the independent evidence before me indicating that Arab activists in Iran allege that the government is trying to stamp out their culture. However, I have not been able to locate any independent evidence indicating the specifics of this allegation, nor any evidence suggesting that this allegation is true. I accept that many Arabs in Iran live in economically deprived conditions. However, there is nothing in the evidence before me to suggest that this is true of [the applicant] or his family. Even if [the applicant] and his family were economically deprived, it would not follow that this would amount to persecution or that they had a well‑founded fear of persecution for a Convention reason. In the circumstances, I cannot be satisfied that [the applicant] has a well‑founded fear of persecution because of his Arab ethnicity."

Accordingly we do not accept the appellant's assertion that the Tribunal came to its conclusion "without taking into consideration the independent evidence." The appellant seeks to have us revisit the merits of the case, which is not within our province. Nor was it within the province of the primary judge.

28 The second error alleged in the appellant's written submissions is directed to the Tribunal's statement that the appellant did not claim to have a fear of persecution for any reasons other than his alleged political activities and his Arab ethnicity, and that there was no evidence before the Tribunal to suggest he has a well founded fear of persecution for any other Convention reason. The appellant claims that this is incorrect, and relies on the judgment of the Iranian Revolutionary Court referred to in [11]. Her Honour rightly refused to receive the affidavit to which the judgment was an exhibit on the ground that it was "irrelevant to any of the grounds alleging jurisdictional error as particularised in respect of the writs sought", and that fresh factual issues cannot be raised on an application limited to jurisdictional error unless they bear on some jurisdictional error alleged. No arguable case of such error had been made out. 29 Even if the extract had been before the Tribunal, it would not have falsified the statement that there was no evidence before it to suggest that the appellant has a fear of persecution for some Convention reason other than Arab ethnicity and political activities. The conviction relates to the latter - distributing and presenting leaflets against the Government. 30 We now turn to the two grounds contained in the Notice of Appeal. They are not mentioned in the appellant's written submissions. The first is that the Tribunal based its decision about the appellant's more recent activities on speculation about how the Iranian authorities viewed his past and would view his more recent activities. He contends that the Tribunal based its decision largely on the unfounded speculation that his membership of Gahbat Tahrir Arabistan(GTA) was of no interest to the authorities. It is said that this speculation about the Iranian authorities' treatment of GTA members is a jurisdictional error. 31 What the Tribunal said about GTA is as follows: "[The applicant] claimed at the hearing that he undertook these [more recent political activities] on behalf of an organisation called Gahbat Tahrir Arabistan. However, when the delegate asked him whether he had ever been involved in any political organisations, [the applicant] stated that he had been a member of Gahbat Tahrir Arabistan, but that this organisation was no longer active. I consider this inconsistency in [the applicant's] evidence to be very significant. When he was asked for an explanation for the inconsistency at the hearing [the applicant] indicated that he had been asked if Gahbat Tahrir Arabistan was active in Iran and had responded that it was not active because he was not aware of what the organisation was doing in Iran. In my view, this explanation is illogical and unconvincing given that [the applicant] claimed during the hearing that he and a number of other people were engaged in activities with the organisation within Iran." 32 Later the Tribunal said: "[The applicant's] evidence concerning his political activities is also inconsistent with the independent evidence before me. That evidence indicates that whilst there was a push for the independence of Khuzestan (otherwise known as Arabistan) at the time of the Revolution, Arab Iranians supported the Iranian government during the Iran‑Iraq war. There is no evidence before me to suggest that there is currently any political push for autonomy by Arab Iranians. If there were any such movement, I am of the view that it would be known to sources used by agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and UNHCR. Moreover, the independent evidence before me, which I accept, is that an organisation called the Arab People's Movement, also known as the Movement for the Liberation of Arabistan (one of the possible translations of Gahbat Tahrir Arabistan), is a small and politically insignificant group of Iranian exiles, most of whom live in the Netherlands and Germany. The evidence indicates that the group was founded shortly after the Iranian Revolution and has not carried out activities inside Iran since 1986 or 1987. I am of the view that if this organisation was currently active in Iran, this would also be known to sources used by the agencies referred to above. The inconsistencies in [the applicant's] evidence, together with the independent evidence before me, lead me to conclude that [the applicant] was not active in an organisation called Gahbat Tahrir Arabistan in the two years prior to his departure from Iran. I am of the view that he fabricated this claim in an attempt to enhance his claims to refugee status." 33 These passages indicate that the appellant's characterisation of the Tribunal's process of reasoning as "speculation" is inappropriate. The Tribunal based its conclusions about GTA on inconsistencies in the appellant's evidence and information from independent sources. It was open to the Tribunal on the material before it to conclude as it did. 34 The second ground of appeal is expressed as follows: "Even if the RRT's findings that '[the applicant] was not active in an organisation called Gahbat Tahrir Arabistan', that 'he fabricated this claim' and that he 'has not engaged in political activities' were correct, the fact that [the applicant] disclosed and described his political activities and his membership in an organisation opposed to the Iranian government has now become known to Iranian authorities. The appellant's family in Iran was informed in September 2003 by security forces in Iran that the appellant would soon [be] returned to Iran and that they had his name on their list from Australia."

On this basis he claims that his refoulement is prohibited under international law.

35 This claim was rejected by the primary judge. Her Honour pointed out that this refugee sur place claim was based on events that occurred in about September 2003 which could not have been raised before the Tribunal, and could not be raised before her. There is no error in her Honour's treatment of this issue.

CONCLUSION 36 The appellant's grounds of review having no real prospects of success, the primary judge correctly refused to enlarge the time within which certiorari could be sought. For the same reason, the application for an order nisi for prohibition was properly dismissed. We briefly mention another reason why prohibition must have been refused. That writ is sought to prohibit the Minister from proceeding further with the proceeding in the Tribunal. So long as the Tribunal's decision stands (certiorari not being available), there is no further proceeding in the Tribunal to prohibit. Further, if what the appellant really seeks is an order restraining the Minister from removing him from Australia, as the particulars to his application to the High Court might suggest, prohibition would not be available so long as the Tribunal's decision stands. So long as it stands, the Minister is under a duty, in accordance with s 198 of the Migration Act, to remove the appellant. No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error. See Applicants M31/2004; Ex parte - Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA Trans 318 per Hayne J; Sithamparapillai, Ex parte ‑ Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA Trans 364 per Hayne J; Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at [23]‑[24] and [27] per McHugh J. Although the primary judge did not dismiss the application for prohibition on the ground of the appellant's lengthy delay in seeking constitutional writs, that, and the making of a s 417 application, reinforce the propriety of the proceeding having been brought to an end.

OTHER MATTERS 37 In view of the conclusion we have reached, it is unnecessary for us to deal at any length with the submissions made by the respondents' counsel about the appellant's need for an extension of time within which to seek leave to appeal, and leave to appeal if an extension were granted. If the orders made by the primary judge dismissing applications for orders nisi were interlocutory, we would refuse an extension of time on the ground that he does not have arguable grounds of appeal, and dismiss the appeal as incompetent. If those orders were final orders, no extension of time or leave to appeal would be needed, and we would dismiss the appeal. Whether the orders made were interlocutory or final is a question upon which differing views have been expressed by Full Courts. See NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 and S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150. The appellant was, understandably, unable to assist us with argument on that topic. It is inappropriate to attempt to resolve this issue in the absence of argument on both sides. In the circumstances we will assume in his favour that the orders are final, and simply dismiss the appeal. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, and Justices Sackville and Sundberg.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 10 November 2004

Date of Judgment: 12 November 2004