M211 of 2003 v Minster for Immigration and Multicultural and Indigenous Affairs

Extension of time - delay 8 The order of remitter directed that the application for an order nisi proceed as if steps already taken in the matter in the High Court had been taken in this court, and that the application be governed by O 55 r 17(1) of the High Court Rules. O 55 r 17(1) provides: "An order nisifor a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal, or of a magistrate or justices, shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law." 9 There is a general power in the High Court to enlarge time under O 60 r 6. However, no such order was made at the time the matter was remitted. Therefore, the application for a writ of certiorari remains subject to the time limit imposed under O 55 r 17(1). The principles that govern enlargement of time under the High Court Rules were explained by McHugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459. His Honour said: "…the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work any injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for the parties of the grant or refusal of the application for an extension of time." 10 The applicant took no steps to challenge the Tribunal's decision until some three years and two months later. The application for a writ of certiorari is well out of the time provided for the making of such an application under O 55 r 17(1). It should be noted that in Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89 at [29] Dowsett and Lander JJ expressed the view that the time limits in r 17 are procedural rather than substantive and accordingly are not applicable when matters are remitted from the High Court to this Court. For reasons which will become clear it is not necessary for me to choose between differing opinions about the correct characterisation of r 17. 11 There is also a question as to whether there are any time limits in relation to relief by writ of prohibition or whether delay in seeking that relief is simply a matter to be taken into account in exercising the court's discretion. See generally: Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 ("Thayananthan). 12 In Re Commonwealth & Anor; Ex parte Marks (2000) 177 ALR 491 at (495) ("Ex parte Marks") Mc Hugh J expressed the view that in a case, such as the present, involving constitutional writs directed at the acts or decisions of public bodies or officials there is a strong public interest in achieving finality in relation to the legitimacy of such acts or decisions. In Ex parte Marks there was a delay of 17 months between the making of the impugned decision, and application for the constitutional writs. McHugh J said that he doubted that an extension of time could ever be granted to quash a decision after such a lengthy delay unless it had been brought about by some conduct on the part of the decision-maker. 13 Here, counsel for the applicant submitted that the reasons for the delay in bringing his application were his detention and lack of financial resources. However, an exhibit to the applicant's affidavit on 19 June 2000 shows the applicant received a written communication from his former legal representatives which states: "An appeal to the Federal Court can only be successful if the Refugee Review Tribunal has made a mistake of law. We have read the decision and it [sic] an error of law is not apparent to us. Consequently, we would not recommend that you lodge and appeal. We are not able to assist you if you decide to appeal to the Federal Court as such services are not covered by the IAAAS contract under which earlier services were provided to you. … You are entitled to apply to the Minister under Section 417 of the Migration Act . . ." 14 It was submitted on behalf of the respondent that the applicant, having received this advice, did not seek review of the decision but instead requested Ministerial intervention pursuant to s 417 of the Act. It was submitted this should be viewed as an indication that the applicant was prepared to accept the Tribunal's decision as correct, and in effect he abandoned the claims now sought to be advanced. Counsel for the respondent relied upon a series of decisions of this court in support of the submissions that an applicant under s 417 of the Act does not excuse failure to seek judicial review within applicable time limits: Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 (von Doussa J) at [9]; Applicant A16 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 567 (von Doussa J) at [19]; Hassen v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1036 (Heerey J) at [9]; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others [2004] FCA 21; (2004) 205 ALR 198 (Goldberg J) at [14]-[15]; Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 (Weinberg J) at [12]; Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 (Weinberg J) at [18]. 15 It is convenient to put consideration of the submissions in relation to the excuses for delay to one side in order to turn to the prima facie merits of the application since an application to extend time requires 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.

(1) Exclusion from tertiary education 16 The Tribunal accepted that the applicant is of Arab ethnicity and that in his last year of school, in 1982, he was involved in an exhibition of Arab culture at his school. The Tribunal noted that this was at the time of the Iran-Iraq war and that issues to do with Arab culture would have been particularly sensitive at the time. Hence, the Tribunal was hardly surprised that such an exhibition was adversely received. The Tribunal accepted that the applicant was briefly detained in connection with these events, however it was not persuaded that this detention was for the three months that the applicant had claimed. The Tribunal noted that at the time the applicant was still at school and that he was able to undertake final high school examinations and repeat those that he failed. The Tribunal found that "more serious action" would have been taken against the applicant by the authorities if a "particularly serious view" of the activities had been taken. The applicant conceded that as this was "the first time he got into trouble" . . . "there was no problem" in him obtaining a passport in 1984. 17 The Tribunal also accepted that after participating in a demonstration, along with a number of other people, the applicant was detained in 1984 for a period of eight months pending trial. The Tribunal noted that this period of detention also occurred during the Iran-Iraq war when "political sensitivities in relation to criticism of the Iranian regime would have been particularly acute". However, the Tribunal did not accept that the applicant was considered by the Iranian authorities to be any particular threat to the regime, nor in any leadership position in relation to the demonstration as claimed, because of "the leniency of the sentence imposed". However, the Tribunal considered that this period of detention in 1984 amounted to persecution for a Convention reason. When asked how he was able to get through Tehran airport some fifteen years later in 1999 without detection the applicant said "he had an Iraqi passport" and "he was not high profile." 18 The Tribunal did not accept the applicant's claim that he had "not been allowed to go to university because of his record" which was a reference to the events of 1982 referred to above. In any event, it found that even if this were the reason for his exclusion from university there was nothing in the evidence that suggested that the applicant's exclusion from university caused him any significant detriment or disadvantage which would enliven a Convention reason. In arriving at this view the Tribunal said: "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 the 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 Ethnic 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." [CB 37] 19 Counsel for the respondent relied on Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 arguing that there is no universal proposition that discrimination in access to education must amount to persecution and whether any restriction in access to educational opportunities amounts to persecution will depend on individual facts and circumstances: see also Harirchi v Minister for Immigration and Multicultural Affairs [2001] FCA 474 ("Harirchi') at [17] per Marshall J referring to Hill J in Prahastono v Minister for Immigration and Multicultural Affairs (1997) FCR 260 at 267-8. The Full Court on an appeal did not disturb the findings of Marshall J in Harirchi. 20 It was open to the Tribunal to find that in the applicant's circumstances there was nothing to suggest that he was caused detriment or disadvantage by exclusion from university. Thus, on the application to the facts of well-understood and clear principles there is no arguable ground of jurisdictional error in the Tribunal's finding on this aspect of the applicant's claims.

(2) Recent political activities in support of Arab rights 21 The Tribunal did not accept the applicant's claim that he had been involved in political activities more recently than those in 1982 and 1984 as described above. It considered there were inconsistencies in the applicant's evidence which it identified in detail as follows: (i) that the applicant had claimed during the hearing that the activities were undertaken for an organisation called Gahbat Tahrir Arabistan, however he had earlier told the delegate that he had been a member of the organisation and that it was no longer active. When the Tribunal put this to him, the applicant sought to explain that his response was because he was not aware of what the organisation was doing in Iran. The Tribunal found the applicant's explanation illogical and unconvincing. The Tribunal found this inconsistency to be very significant; (ii) that the applicant had told the delegate that after being released from detention in 1984 he had only been engaged in Arab cultural activities. However during the hearing the applicant claimed that he had been involved in political activities, publishing and distributing pamphlets criticising policies of the Iranian regime. The Tribunal said when asked for an explanation of inconsistency the applicant said he told the delegate he was involved in "political education". The Tribunal stated that after listening to the tape of the interview with the delegate it was not persuaded that this was the case; (iii) that independent country evidence did not support the applicant's claims that there is a political push for autonomy by Arab Iranians. Further, that an organisation that possibly corresponds to the Gahbat Tahrir Arabistan consisted of a "small politically insignificant group of Iranian exiles…". The independent country evidence before the Tribunal indicated that this group was formed shortly after the Iranian revolution and has not carried out activities inside Iran since 1986 or 1987; (iv) that the applicant's account of what happened before he left Iran was problematic. The Tribunal was unconvinced that the applicant would have been able to distribute political pamphlets for two years without being detected because it did not accept that he could have delivered them without at least some of them, unwittingly, going to security personnel or government employees. It found this part of the applicant's claim unconvincing and implausible. Moreover, the Tribunal found inconsistencies in the description of events which were said by the applicant to have stimulated his flight to Tehran thence to Australia via Malaysia and Indonesia, particularly in relation to the arrest of other members of his group. The Tribunal found that although these individual inconsistencies were not necessarily significant inconsistencies in themselves, when considered cumulatively they contributed to the overall view that this aspect of the applicant's claims was fabricated. 22 The Tribunal found: "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." Adverse findings of credit which are both open to the Tribunal and not perverse cannot constitute an error of law or otherwise come within the proposed grounds of appeal referred to already: see Avesta v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 121. The Tribunal concluded that "having considered the evidence as a whole, [it] was not satisfied that [the applicant] is a person to whom Australia has protection obligations under the Refugees Convention." There is also no error in the Tribunal's findings on this aspect of the applicant's claims. 23 All of the matters raised by the applicant as errors of law concern issues going only to the merits of the Tribunal's decision and they do not establish an arguable case of jurisdictional error for any of the grounds of review alleged and particularised as set out in paragraph 5 above. The Tribunal's decision is accordingly a "privative clause" decision: see s 474 of the Act.

Fresh Evidence - Opinion Evidence 24 The applicant sought to rely on fresh evidence in this application. One of the two pieces of fresh evidence was the affidavit sworn on 29 January 2004 by Ewen Macmillan. 25 Mr Macmillan was from London and described himself as "a researcher called as expert witness to provide testimony to the Immigration Appellate Authority in the United Kingdom". His affidavit post-dates by some four years the Tribunal's decision and, as the respondent pointed out, refers to country information, all of which was not before the Tribunal, and some of which could not have been available to the Tribunal when it made its decision because that information had not then even been created. One of his sources of information is conversations he had had with Arab Iranian activists who had been granted refugee status in the United Kingdom. Mr Macmillan sought to give opinion evidence about three topics dealt with before the Tribunal, namely Arab Iranian opposition activity, an organisation known as Gahbat Tahrir Arabistan and the distribution of pamphlets by Arab Iranian activists and he sought to debate the Tribunal's findings on the three issues mentioned. For example, he quoted the Tribunal's statements referred to in paragraph 21(ii) above. Then he opined: "It is not clear to me that the Applicant's claim that 'he had only been engaged in activities related to Arabs' is in any way inconsistent with his evidence 'that he had been involved in political activities.' I do not understand the Tribunal Member's intention here in identifying a contradiction." 26 The ordinary requirements for the receipt of fresh evidence were relied on by counsel for the respondent who referred to a Full Court decision, NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 ("NASB") at [42]-[43]: "…first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result." 27 Counsel also relied on the Full Court's observations in NASB on differing views expressed as obiter dicta in R v West Sussex Quarter Sessions; Ex parte Albert and Maude Johnson Trust Ltd [1974] QB 24 on the issue of whether the discovery of fresh evidence was, in itself, a ground on which certiorari could be granted. Orr LJ said at [39]: "The limits of certiorari are, in my judgment, well established and do not extend beyond defects or irregularities at the trial . . . it cannot be said . . . there is a defect or irregularity in proceedings because the tribunal, if other evidence had been adduced, might have come to a different conclusion." Lawton LJ said at [42]: "Certiorari is not concerned with miscarriage of justice arising on the evidence but with jurisdiction and the regularity of the proceedings . . . If the new evidence had been available, it would have merely produced a conflict of evidence with which the court on certiorari is not concerned." Denning LJ (in dissent) said at [36]: "I would . . . extend the meaning of certiorari to cases where fresh evidence is discovered which could not have been found with due diligence before the trial, where it is apparently credible and would have an important influence on the result." The Full Court in NASB unanimously rejected Lord Denning's view: "In our opinion, certiorari does not lie where no more appears than that 'fresh evidence is discovered which could not have been found with due diligence before the trial, where it is apparently credible and would have an important influence on the result '. . . It follows that the fresh evidence here, . . ., is irrelevant to any ground on which certiorari could properly have been granted . . ." That statement of principle by the Full Court is binding on me. 28 It was recognised by the Full Court that certiorari might lie where a failure to obtain a fair hearing is the result of some misconduct of the Tribunal, the respondent or a witness. No such allegations were made here. It was not argued, nor could it have been, that the Tribunal was at fault because it did not have Mr Macmillan's evidence before it some four years beforehand. I rejected the evidence during the hearing on the grounds that 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.

Fresh Evidence - Refugee sur place claim 29 The applicant's essential contentions in support of a refugee sur place claim were that events in Iran since the Tribunal's decision would enhance his prospects of succeeding on a claim under the Convention. There were two matters relied on as supporting a claim of refugee sur place. First it was alleged that the applicant had been sentenced in absentia on 11 November 2000 by the Islamic Revolutionary Court to ten year's punitive imprisonment and to receive one hundred and fifty lashes for ". . . distribution and printing of leaflets against the government." This was not referred to in the affidavits sworn and filed originally in support of the application for an order nisi. However, there was a supplementary affidavit sworn by the applicant on 23 February 2004 which dealt with the claim concerning the sentence in absentia in November 2000. The applicant claimed he first learned of this sentence in a telephone call to his wife on 15 November 2000. Submissions were made by the respondent that this evidence was also fresh evidence which should be excluded on the basis of the statements of principle enunciated by the Full Court in NASB. I permitted the affidavit to be read during the course of the hearing subject to my ruling on that objection later. Had this been an ordinary appeal, I may well have been satisfied of the usual requirements for the reception of fresh evidence on appeal because the evidence was not available at the time of the Tribunal hearing and, had it been available, there was a firm chance it may have affected the result: see also NASB at [29]. 30 However, this is not an ordinary appeal. The applicant cannot make any further application to the Tribunal which would give the Tribunal a chance to assess the evidence. Nor do I have any power to remit the matter for a further hearing which would enable the fresh evidence in the supplementary affidavit of the applicant to be assessed: see Thayananthan: see also SBBJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 761 at [21]. I am also conscious that adjourning the appeal to seek to resolve issues raised by the "fresh evidence", if I thought I had power to do so, may be entirely inconclusive: see WAKH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 159. However, of greatest significance in this context is the fact that the applicant's rights to seek further relief are limited to jurisdictional error: see Part 8, Divisions 1 and 2 of the Act. In my opinion, this evidence is irrelevant to any of the grounds alleging jurisdictional error as particularised in respect of the writs sought and irrelevant to the application for leave to proceed out of time. 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. In any event, no arguable case of jurisdictional error has been made out. 31 The second matter relied on as supporting a claim of refugee sur place was that the applicant was on a "list" of a member of the security forces in Iran. An allegation was made in further particulars of the application for an order nisi that, between 30 April 2001 and 1 September 2003, officers of the Department of Immigration and Multicultural and Indigenous Affairs had taken steps to forcibly repatriate the applicant. In that context, two decisions of two differently constituted Refugee Review Tribunals were referred to and relied upon as supporting the proposition that a person returning to Iran without a passport might be subject to detention, torture or "disappearance". It was claimed that on 1 September 2003 the applicant's wife told him she had been contacted by a member of the security forces in Iran and had been told that the applicant would soon be back in Iran and "the applicant's name was on his list." These matters were set out as further particulars in support of the application for an order nisi. 32 The two matters referred to in support of the refugee sur place claim could not have been taken into account by the Tribunal as they both occurred after the Tribunal was functus officio which distinguishes the facts of this case from Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2001] 109 FCR 18 and Seminigus v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 240. 33 The Tribunal noted that the applicant did not claim before it, and the evidence did not suggest, that any action was taken to cancel the applicant's passport. In this context the Tribunal also considered independent evidence before concluding: "In the circumstances, I cannot be satisfied that [the applicant] was ever refused renewal of his passport or that he was forbidden from travelling." Therefore, in relation to the passport issue it appears to me that the applicant is seeking to do no more than run, on a review, an argument not run below and to do so by reference to Refugee Review Tribunal decisions in respect of which different evidence and different arguments may have been advanced. The circumstances in which the applicant has no current passport were not fully explored or explained before the Tribunal by the applicant who had the onus of raising this matter to any extent that it appeared relevant. Other decisions cannot be determinative of the applicant's position in respect of not having a passport. 34 Leaving aside the manner in which the Tribunal touched upon the issue of the applicant's passport, the refugee sur place claim is based on events in Iran occurring respectively on 11 November 2000 (the Islamic Revolutionary Court decision) and about September 2003 (the applicant's name being placed on a "list"). The applicant could not have raised any of the matters relevant to those developments in Iran before the Tribunal. The judgment of the Islamic Revolutionary Court occurred almost six months after the Tribunal was functus officio and the other events relied upon occurred in 2003. 35 Accordingly, none of the matters raised as supporting an application for refugee sur place can be raised in the context of this application. This is not to suggest that the evidence of the decision of the Islamic Revolutionary Court is not important: it appears significant but it cannot be dealt with by this court on this application.

Conclusions 36 The applicant's claims for judicial review in respect 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. 37 It was noted by counsel for the applicant that in a case such as this where the refugee sur place claim is based on events which post‑date the Tribunal's decision, an applicant for a protection visa may make an application to the Minister pursuant to ss 48A and 48B of the Act. 38 It was also noted during the course of submissions that there may also be scope for a further application from the applicant under s 417 of the Act particularly if the Minister were not informed before about the applicant's supplementary affidavit which was sought to be the subject of a "fresh evidence" application in this case. I accept that the refugee sur place claim is deserving of proper consideration. I also accept that counsel for the respondent submitted correctly that the additional matters, said to provide the basis for the refugee sur place claim, are not within the scope of the judicial review sought and I express no view as to whether applications either under ss 417 or 48A and 48B of the Act would produce a different result as that is a matter for the Minister. I certify that the preceding thirty‑eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Counsel for the Applicant: A Bonnici (Pro Bono)

Solicitor for the Applicant: Refugee Advocacy Service of South Australia

Solicitor for the Respondent: Australian Government Solicitor