MZXAF v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The proceeding before me today has a very long history. The appellant is a citizen of India, who arrived in Australia on 30 July 1994 in possession of a visa entitling him to visit Australia. On 21 October 1994, the appellant applied to the Department of Immigration and Multicultural Affairs for a protection visa. A delegate of the Minister for Immigration and Multicultural Affairs (subsequently, the Minister for Immigration and Multicultural and Indigenous Affairs, now again the Minister for Immigration and Multicultural Affairs) (in all cases, 'the Minister') refused to grant a protection visa. 2 The appellant sought review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 22 August 1996, the Tribunal affirmed the decision of the Minister's delegate. The appellant then sought review of the Tribunal's decision by this Court. By consent of the parties, the Tribunal's decision was set aside and the matter was remitted to the Tribunal to be determined according to law. The Tribunal then again affirmed the delegate's decision on 12 October 1998. The appellant again sought review of that decision by this Court. On 25 October 1999, the Court, again by consent, set aside the decision and remitted the matter to the Tribunal to be determined according to law. 3 In a decision dated 18 May 2000, the Tribunal again affirmed the decision not to grant a protection visa. The appellant again applied to this Court for review of that decision. In a judgment on the merits, North J dismissed the application on 11 December 2000. His Honour's judgment has the medium neutral citation [2000] FCA 1961. I refrain from citing the name applied to it, because there is now in force s 91X of the Migration Act 1958 (Cth) ('the Migration Act'), under which the Court is prohibited from publishing the name of a person applying to the Court in the person's capacity as an applicant for a protection visa. 4 On 2 May 2002, the appellant applied to the High Court of Australia, seeking relief under s 75(v) of the Constitution in relation to the Tribunal's decision. The High Court remitted that proceeding to this Court. On 5 December 2003, Heerey J dismissed that application. His Honour's reasons are published as M52 and M53 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1495. Those reasons make it clear that his Honour did not give judgment on the merits, but rather dismissed the application on an interlocutory basis, because the appellant had failed to lodge it within the time limits fixed by the High Court Rules, and his Honour refused to extend the times so fixed. 5 The appellant appealed from the judgment of Heerey J. On 6 May 2004, a Full Court of this Court refused to extend the time for filing an application for leave to appeal, refused leave to appeal, and dismissed the appellant's purported appeal as incompetent. Although there appear to be no published reasons of the Full Court, it is plain that the Full Court regarded the judgment of Heerey J as an interlocutory judgment, from which leave to appeal was necessary. 6 On 13 May 2004, the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. On 6 April 2005 the Federal Magistrates Court dismissed that proceeding. The reasons for judgment of the Federal Magistrates Court on that occasion have been published as MZWGV v Minister for Immigration [2005] FMCA 980. They indicate that the learned federal magistrate dismissed the application on the basis that his Honour considered that the appellant was estopped by the previous judgments of North J and Heerey J, and the judgment of the Full Court of this Court, from applying again at all to have the Tribunal decision set aside. His Honour also took the view that the Federal Magistrates Court should not be seen to be reviewing decisions made by Federal Court judges. On 6 April 2005, as well as dismissing the appellant's application with costs, the federal magistrate also ordered that there be no further applications brought by the appellant with respect to the Tribunal's decision except by leave of the Federal Magistrates Court. 7 Notwithstanding that order, on 23 May 2005 the appellant applied again to the Federal Magistrates Court for review of the Tribunal decision. On 2 June 2005, the same federal magistrate again dismissed that application with costs. The federal magistrate's reasons for judgment are published as MZXAF v Minister for Immigration [2005] FMCA 979. After referring to the order made on 6 April 2005, his Honour said at [5] - [6]: 'The applicant's only basis for bringing the further application is that he says he now has some witnesses. This would not have been an arguable ground for review, even on his first application. Where an applicant is the subject of an order not to bring further applications without the leave of the court the appropriate step to take before bringing a further application for review is to apply for leave. A leave application should be supported by an affidavit setting out the facts and circumstances relied upon to show that leave should be granted. A copy of the proposed application should be annexed to the affidavit.' The reasons make clear that, because of the fact that the appellant had not sought the leave of the Court before bringing his application, his Honour saw fit to dismiss the application. 8 On 6 June 2005, the appellant filed in this Court what is, in form, a notice of appeal from the judgment of the federal magistrate given on 2 June 2005. The grounds of appeal specified in the notice of appeal read as follows: '1. I disagree with the decision of the Federal Magistrates [sic] because there was an error in this decision. Details I will provide as soon as I received [sic] the judgement [sic]. 2. There was procedural error in the court's decision. The original date of this hearing is on 22nd of June 2005. But it was advanced to 2nd of June 2005. This hearing was heard by telephone. The Judge failed to consider my case inaccordance [sic] with the law of the country. I believe that this was abreach [sic] of natural Justice. Further, I believe this was the abreach [sic] of the human rights & also the procedure of the court. 3. I believe that the court only listening the [sic] Minister of Immigration & their Lawyers but not the applicant. This I believe an error of the court procedure & also Bias and unfair.' 9 I dealt with the matter by way of directions hearing on 8 August 2005. Among the directions that I gave was a direction that, on or before 22 August 2005, the appellant file and serve any application for leave to appeal, any application to enlarge the time for applying for leave to appeal, and any affidavit or other document on which the appellant seeks to rely on the hearing of the appeal or any application for leave to appeal or for enlargement of time. 10 On 19 August 2005, the appellant filed in the Court a document entitled 'Applicant's Submissions on Enlargement of Time and Leave to Appeal'. The document was accompanied by a substantial bundle of copy documents, containing information about the situation of Sikhs in India. The document itself appears to have been drawn with the assistance of a lawyer. I asked the appellant about this during the hearing today and he explained to me that he had a friend, who is a law clerk, visiting him at the time, and he received assistance from that person. 11 The significance of the document for present purposes is that it contains an allegation that the Tribunal made a jurisdictional error, in that it failed to understand the appellant's case and it used documents the appellant was never given a copy of, so that he was unable to comment. It contained an allegation that the federal magistrate asked the appellant what documents he was referring to, but because the appellant was so nervous he was unable to tell the federal magistrate about the documents. Subsequently, on 30 August 2005, the appellant appears to have filed an application for leave to appeal and an affidavit sworn on 30 August 2005. There appears to have been no application in form for enlargement of the time in which to appeal. The affidavit and the application for leave to appeal also bear evidence that they were drawn with some legal assistance, and the appellant told me that the same law clerk friend, who was visiting him, assisted him with those. The allegation of jurisdictional error in relation to the use of documents, of which the appellant was never given a copy, and on which he was unable to comment, is repeated in the affidavit, as is the allegation that the appellant was too nervous to tell the federal magistrate to what documents he was referring. 12 It should perhaps be pointed out that, in its lengthy reasons for decision, dated 18 May 2000, the Tribunal found against the appellant on a very substantial number of issues. It did not accept the majority of the case that the appellant made about his association with, and activities on behalf of, an organisation in the Punjab known as the Khalistan Liberation Force, apparently an organisation which seeks to establish a separate Sikh state within what is currently India. The little of the appellant's case that the Tribunal did accept did not persuade it that he was liable to persecution, or indeed had been the subject of persecution in the Punjab before his departure from India. 13 In the alternative, and relying on information from sources other than the appellant about the situation in India at the time of its decision, the Tribunal made findings adverse to the appellant, and concluded that he would not be liable to persecution in the Punjab if he were to return there at that time, even if he had been persecuted up to mid-1994, when he had left. Further, the Tribunal concluded that, even if the appellant were likely to suffer persecution in the Punjab if he should return, then it would be open to him to avoid that persecution by opting to live elsewhere in India. 14 The appellant's concerns with this decision have been made very clear. He regards it as factually incorrect. He is concerned that the Tribunal, as he puts it, did not understand his case, and did not accept the evidence that he put, and the way in which he put his case. He has sought on numerous occasions since, and still seeks, to establish as a matter of fact the proposition that, if he is to return to India, he will be subject to persecution. That is the reason for his filing with his written submissions on enlargement of time and leave to appeal the substantial bundle of material to which I have referred, all of which I have read. He claims that he would be able to call further witnesses, who would be able to bolster his case that the treatment of him as a Sikh, and as an active member of the Khalistan Liberation Force, would amount to persecution, still, if he were to return today. He has emphasised to me the danger that he believes that he is in. 15 The difficulty for the appellant in attempting to make that case, a difficulty I have endeavoured to explain to him in the course of the hearing, is that the facts were a matter for the Tribunal, and for the Tribunal only. It is not open to any court, at any stage of any of the proceedings that the appellant has taken, or would be likely to take, simply to set aside the decision of the Tribunal on the basis that the court disagrees with the factual conclusions of the Tribunal. As I have attempted to explain to the appellant, what is required is what amounts to jurisdictional error, something so fundamental about the Tribunal's approach to the case, or about its procedures, that it indicates that the Tribunal has failed to perform its statutory function of reviewing the decision of a delegate of the Minister. 16 The first issue that I must address is the question whether the federal magistrate's judgment was interlocutory or final. This is not entirely clear, either from his Honour's order of 2 June 2005 or from his Honour's reasons. Counsel for the Minister was inclined to submit that the judgment was interlocutory, on the basis that it was a rejection of an application for leave to file a further substantive application, in compliance with the former order of the Federal Magistrates Court. I find it impossible to read the federal magistrate's reasons for judgment as an indication that his Honour was treating the matter as an application for leave. His Honour pointed out that the appellant had not sought the leave of the court, and indicated what would have been necessary for the appellant to apply for leave. It is plain that none of that had been done by the appellant, and plain that the federal magistrate regarded the absence of any application for leave as a ground for his dismissal of the substantive application that he regarded as before him. Although the orders made are not entirely clear, it can at least be said that the orders dismissed the application and did not in terms refuse a grant of leave to bring a further application. I regard myself as bound to deal with the federal magistrate's judgment on the basis that it was not a discretionary judgment refusing to grant leave to bring a further proceeding.