Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489 | Case summary

Federal Court of Australia|1998-09-14|Before: Sundberg J

The applicant did not claim to have had any subjective fear of persecution on the ground that a political opinion would be imputed to him because his sons might have such an opinion imputed to them because of their sympathy with the LTTE. Indeed he distinguishes between his sons' recruitment and membership of the LTTE as opposed to the sympathy for it shown by all Tamils. The only claim to fear was based on the sons' membership/recruitment. He was aware that his wife had disputed his "membership" claim at the interview, but in the letter persisted in that claim alone. The Tribunal was under no obligation to consider the sympathy claim.

31 In SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]‑[9] the Full Court said: "It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims …. It is however, no part of the Tribunal's function 'to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim' ... In this case there is a difficulty in that nowhere in the material that the appellant put before the Tribunal was the issue of perception, as distinct from the actuality, of the appellant's citizenship directly raised. Even if we were to accept that it was implicitly raised, which is by no means clear, there is nothing in that material to support such a claim. The Tribunal comprehensively rejected the appellant's evidence on the subject of his nationality as a fabrication designed to enhance his application for a protection visa. That being so there was no evidence that could in any way support a claim of persecution arising from a false perception of such citizenship."

32 The applicant did not put the "sympathy" argument. He could not put it, because it was inconsistent with his recruitment/membership contention. It was no part of the Tribunal's function to construct a fall‑back position for him that he did not and could not put consistent with the claim he made that was not believed. 33 In SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 the applicant claimed that the Tribunal had failed to deal with an alternative way in which he put his case, namely that he had an association with a girl of the Baha'i faith which was such as to give rise to a real chance that he would have imputed to him the Baha'i's beliefs and thus would have a real chance of being persecuted on religious grounds. The primary judge concluded that the applicant had not based himself on the alternative case, and that the only case he had deployed was a fear of persecution based on his intended conversion to the Baha'i faith. His Honour found that the material before the Tribunal did not raise the alternative case. This conclusion was upheld on appeal to the Full Court. Cooper J, with whom Carr J agreed, said: "There being no evidence to raise the alternative argument of persecution for imputed religious beliefs before the RRT, there was no statutory obligation under the Act for it to consider such an alternative case when it was neither raised, nor relied upon, by the appellant in the proceedings before it." 34 In the present case, not only was the ground not relied on, there was no evidence that having children who were sympathetic to the LTTE, or who might have sympathy imputed to them, would cause the authorities to impute that sympathy to the parents. Such evidence as there was, was to the contrary. In his letter the applicant said all Tamils sympathised with the LTTE. There is no realistic prospect of the applicant succeeding on this ground of review. 35 The applicant's egregious delay in applying for orders nisi has not been satisfactorily explained. His grounds of review have no real prospect of success. Having regard to the lengthy history of this matter, it is in the public interest that it be brought to an end. The application for an enlargement of time in which to seek mandamus and certiorari is refused, and the application for orders nisi is dismissed as incompetent. The application for an order nisi for prohibition is refused by reason of the applicant's delay in seeking it. What I have said about the unexplained delay in seeking mandamus and certiorari is applicable to prohibition. The applicant did not contend that if time was not enlarged for the former, the proceeding could nevertheless continue as to the latter. 36 After the conclusion of argument Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89 was decided. Two members of the Court, Dowsett and Lander JJ, expressed doubt as to whether, on a bare remitter, there is any role for the Order 55 limitation periods. The third member of the Court, North J, said that the Court's decision on the merits of the appeal made it unnecessary to venture into the question of the application of O 55 to remitted matters. If Dowsett and Lander JJ's obiter view is correct, I would refuse to grant orders nisi for certiorari and mandamus for the reason I have given at [35] for refusing an order nisi for prohibition. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Counsel for the Applicants: SJ Hamlyn-Harris (appearing pro bono)

Solicitors for the Applicants: Allens Arthur Robinson (acting pro bono)

Solicitor for the Respondents: Australian Government Solicitor

"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." 4 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." 5 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 and Applicants A64/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 568. 6 The Tribunal's decision was given on 25 September 1998. The two month period within which the mandamus application should have been made expired on or about 25 November 1998. The application to the High Court was made on 8 May 2001. Accordingly an extension of time in the order of two and a half years is involved. The extension in respect of the certiorari application is in the order of two years and four months. In each case the extension is much longer than the seventeen months delay that McHugh J in Marks required the presence of "very exceptional circumstances" to excuse. 7 The applicant submitted that it was important to take into account what had happened in the interval between the Tribunal's decision and the application to the High Court in May 2001. He said he was "without sufficient means and was unable to obtain any other form of support" to seek a review of the Tribunal's decision within the time permitted. He therefore applied to the Minister under s 417 of the Act for a more favourable decision than that of the Tribunal. That application was made on 25 October 1998. On 11 June 1999 the Minister declined to act under s 417. On 24 June 1999 another s 417 application was made, and representations in respect of this application were made to the Minister on the applicant's behalf by a member of Parliament. On 14 July 1999 the applicant sought review in the High Court. It does not appear whether the review was of the Tribunal's decision or the Minister's s 417 decision or both. The probability is that it was of both decisions, because on 23 November 1999 part of the proceeding was remitted to this Court. The applicant says he was advised that the representations of the member of Parliament in support of his second s 417 application would be considered provided he discontinued the proceedings before the High Court and the Federal Court. He therefore instructed his solicitors to discontinue these proceedings, and they were dismissed by consent on 30 and 31 October 2000. In April 2001 the applicant was informed by the member of Parliament that the Minister had declined to act under s 417. On 8 May 2001 he commenced proceedings in the High Court for an order nisi in respect of the Minister's decision under s 417 and the Tribunal's decision of 25 September 1998. The sequence and timing of the events described above can more readily be seen from the following chronology:

8 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." 9 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.'" 10 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. 11 What was said in the cases considered above applies to the present case. The making of the s 417 applications are not a special circumstance excusing the delay and warranting an enlargement of time in circumstances where the making of the applications implicitly accepted that the Tribunal's decision would not be challenged. In the present case there is a further consideration. The Minister does not have a duty to consider whether to exercise the power in s 417: see sub‑s (8). Presumably taking the view that the applicant should not have on foot both a curial application for review and a considered application under s 417, the Minister required the applicant to discontinue the former. This he did. Accordingly, the applicant made a considered decision to elect in favour of the s 417 course. That is not just an "indication" that he was prepared to accept the correctness of the Tribunal's decision. It is a positive election no longer to challenge it. 12 In further explanation for his delay in applying to the High Court the applicant said he was "without sufficient means and was unable to obtain any other form of support to seek a review of the decision by the Court within the time permitted". No particulars of the applicant's financial position are provided, and there is thus no basis upon which to assess the extent or weight of the alleged financial constraints. I do not regard that unparticularised claim as a satisfactory explanation for the delay. Similar bald claims of lack of money were rejected in Applicant M29 of 2001, Applicant VUAD of 2003, Daniel and Applicant M216/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 931. 13 The applicants prospects of success in obtaining an order absolute for the issue of the writs must now be considered. The applicant alone made claims under the Convention. His wife's case is dependent on his. At the time of the Tribunal's decision the applicant was 65 years old. He is thus now 70. The applicant owned a variety of businesses over the years in Sri Lanka, and moved from Colombo to Jaffna and back following the changing political situation in the country. He claims that ever since the communal riots in 1977 and 1983, he has suffered discrimination because he is a Tamil. The applicant claims that when the Indian Peace Keeping Force (IPKF) arrived in Sri Lanka in 1987 his family was displaced in Chavakachcheri and narrowly escaped death in an IPKF bombing raid. He says that in 1988 one of his fingers was damaged so badly by an IPKF officer, who was trying to extract a confession of his association with the Liberation Tigers of Tamil Eelam (LTTE), that it had to be amputated. The applicant left Jaffna in mid 1995 and went to Colombo. There he obtained a visitor's visa on which he entered Australia. At the applicant's interview with the delegate he claimed that his youngest two sons were recruited into the LTTE, and that as a result he and his wife may be detained by the Sri Lankan security forces should they return to Sri Lanka. The applicant's wife contradicted this claim at the interview, saying the sons had not joined the LTTE but merely sympathised with its aims. 14 The Tribunal accepted the applicant's account of the communal riots in Sri Lanka, the arrival of the IPKF, the LTTE 'government' in the north and the Sri Lankan government offensive to recapture the north from the LTTE at about the time he left Sri Lanka. It also accepted that he became a displaced person as a result of the attempts at military control over certain areas of the country, and that he may have been questioned by the IPKF in relation to perceived involvement with the LTTE. The Tribunal noted that the applicant spent 36 years in Colombo, moved to Jaffna in 1983, remained there until 1995 except when he was a displaced person in Chavakachcheri, and returned to Colombo in May 1995. 15 The Tribunal then considered the concept of "persecution". Based on various authorities to which it referred the Tribunal noted that

Error in interpreting and applying the term "persecution" 22 In his amended Application the applicant contends that his claim that the Tribunal erred in interpreting or applying the definition of "persecution" "is shown by the fact that the Tribunal, having noted the claim … that 'One of his fingers had to be amputated in 1988 when an IPKF captain tried to force a confession out of him that he was involved with the LTTE', then found that '… the harm suffered in the past as claimed by the Applicant (First Respondent) being displacement, discrimination and interrogation by the IPKF … is not harm such as to be regarded as persecution in terms of the Convention'. … The relevant claim about the finger was made in the first prosecutor's statement dated 25 September 1995 and was that a captain of the IPKF smashed the first prosecutor's finger with the butt of a machine gun, and still continued to interrogate him …." 23 The complaint is that the Tribunal erred in law by concluding that the smashing of the applicant's finger in the circumstances described was not persecution. The Tribunal correctly set out the meaning of "persecution" by reference to Chan v Minister for Immigration and Multicultural and Indigenous Affairs (1989) 169 CLR 379 at 388 and 429, passages relied on by the applicant in his written and oral submissions. The Tribunal recorded the applicant's loss of a finger as a result of the IPKF incident, and specifically dealt with it by saying that the harm suffered by the applicant in the past, including "interrogation by the IPKF", was not persecution. The Tribunal correctly said that whether a particular type and severity of harm amounts to persecution is a question of fact and degree. The Court is not empowered to decide the merits of a claim to refugee status. Its jurisdiction is confined to considering whether the Tribunal, in determining that it was not satisfied that an applicant is a person to whom Australia has Convention responsibilities, committed a reviewable error. That the Court might not itself have taken the same view of the facts as the Tribunal does not establish error. In Saha v Minister for Immigration and Multicultural Affairs [2001] FCA 520 the applicant submitted that the Tribunal erred in law in finding that being beaten, badly injured and shot at was not serious enough to constitute persecution. Beaumont J rejected the submission at [57] and [59]: "It is accepted of course, on both sides and by myself, that I have jurisdiction to intervene in the present area only if an error of law has been demonstrated, and that an error of fact or mistake in the fact finding process will not enliven the Court's jurisdiction. … Applying [the] test in [Vetter v Lake Macquarie City Council [2001] HCA 12] to the present case, I do not think it can necessarily be said that the facts of an attack and being injured or the fact of being shot at, are necessarily either within or outside the description used in the Convention, in its definition of persecution, for that purpose. It is simply not possible to generalise in this area in a way that will throw up necessarily a question of law."

See also Raheem v Minister for Immigration and Multicultural Affairs [2001] FCA 940 at [31].

See the Full Court decisions in Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28] and Minister for Immigration and Multicultural Affairs v Al‑Miahi [2001] FCA 744 at [35].

Failure to consider relevant matter 30 It is contended that the Tribunal failed to consider a relevant matter, namely whether the applicant might be imputed with a political opinion, and therefore have a well‑founded fear of persecution, because his sons, even if not members of the LTTE, were sympathetic to it or perceived to be. The wife's evidence was that the sons had not joined the LTTE, though they were sympathetic towards that body, but not active in it. The Tribunal's failure to consider this matter was said to be a failure to consider an important aspect of the applicant's case. See WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [45], NACM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 64 at [30]‑[33] and SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 59 at [23]‑[24]. The difficulty with this submission is that the applicant did not claim before the Tribunal that he feared persecution on the basis now propounded. The case is unlike those relied on, in each of which the Tribunal was found not to have dealt with a central issue upon which the applicant relied. In a letter to the Tribunal shortly after his interview, the applicant said: "It was perfectly right on your part in asking me before the beginning of the interview whether I had included everything in my application without leaving any important matter which may or will lead to any controversy at the end. It is true that I did not mention anything about my two sons …. To tell you the Gospel truth, in fact they are members of the LTTE since June 1995. They were recruited by the LTTE in June 1995 and until December 1995 I did not know about their whereabouts. Since 1990, when the LTTE took full control of the Jaffna Peninsula, all the Tamil people started to sympathise with the LTTE and gave their fullest support. When I heard that the government was going to start a massive offensive in July 1995, I decided to leave Jaffna at the end of June to Colombo. By this time the story about my two sons who were recruited by the LTTE had spread like wild fire …."

Das v Minister for Immigration & Multicultural Affairs

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