Three calendar years of 365 days comprises 1095 days and so the aggregate period of delay relied upon is a little more than three years.
19 The Federal Magistrate thought that the delay was not explained satisfactorily. His Honour referred to the undoubted proposition that there is a discretion to withhold a constitutional writ where there has been unwarrantable delay: see R v Commonwealth Court of Conciliation and Arbitration, Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ('Aala') at [53] per Gaudron and Gummow JJ.
20 Counsel for the Minister relies, in particular, on the Full Court decision in Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132. In that case the Tribunal's decision was dated 5 November 1997 and the affidavit commencing the proceeding in the High Court was dated 23 May 2002 and filed on 27 May 2002 - more than four years after the decision. The Full Court noted, citing Aala above, that delay has always been a bar to relief of the kind sought, quite apart from any limitation period expressed in O 55 rr 17 and 30 of the High Court Rules.
21 In that case, the appellant sought to explain the delay by reference to applications he had made pursuant to s 417 of the Act, seeking intervention of the Minister, but the Full Court did not regard the making of those applications as providing a satisfactory explanation.
22 On the hearing of the present appeal, Mr Sarkis sought to tender a bundle of correspondence with a view to explaining the delay. The tender was opposed by Mr Johnson of counsel for the Minister. Mr Sarkis said that the appellant had handed the documents to him only the preceding afternoon.
23 Section 27 of the Federal Court of Australia Act 1976 (Cth) provides that in an appeal the Court may in its discretion receive further evidence. Order 52 r 36 of the Federal Court Rules, however, provides that the grounds of an application to lead further evidence on an appeal must be stated in an affidavit and that any evidence necessary to establish the grounds of the application, as well as the evidence which the applicant wants the Court to receive, must be given by affidavit. The rule requires that any affidavit be filed not later than 21 days before the hearing of the appeal and that the evidence of any other party to the appeal be given by affidavit filed not later than 14 days before the hearing of the appeal. None of these rules were complied with by the appellant.
24 The correspondence sought to be tendered shows that the appellant was applying to the Minister under s 417 of the Act for the exercise of the Minister's discretion in substituting for the Tribunal's decision a decision more favourable to the appellant. The correspondence commences with a letter to him dated 3 January 1997 from Barlow and Company, the appellant's then solicitors, enclosing a copy of the Tribunal's decision and advising him 'we must continue with the Ministerial appeal'. The correspondence shows that on 27 November 1997 the Minister refused an application made by Barlow and Company on behalf of the appellant on 21 January 1997 for the exercise of the Minister's discretion under s 417 of the Act.
25 According to the correspondence, on 24 March 2004, new solicitors representing the appellant, Adrian Joel & Co, wrote to the Minister again applying for the exercise of his discretion under s 417 of the Act. On 5 August 2004, the Department wrote to that firm advising that the appellant's case had previously been brought to the attention of the former Minister who had decided not to consider it. The letter advised that the new Minister had directed that she did not wish to consider whether to exercise her power under s 417 if a case had been brought to the former Minister's attention, unless additional information was provided, bringing the case within her guidelines. The Departmental letter stated that the additional information supplied by Adrian Joel & Co, in combination with the information provided previously, did not bring the case within the Minister's guidelines, and so no further action would be taken in respect of the request.
26 The documents sought to be tendered do not adequately explain the delay. They show no more than that the appellant was pursuing a request that the Minister exercise the discretion given to the Minister by s 417.
27 Both because the failure to tender the documents in the FMCA is not adequately explained, and because the documents, if admitted, would not adequately explain the delay in the commencement of the proceeding in the FMCA, the tender of them is rejected.
28 For reason of unwarrantable delay, therefore, the FMCA correctly dismissed the application and the appeal should be dismissed with costs.
29 However, I will proceed to address those substantive issues which Mr Sarkis raised on the appeal. I will not, however, address other matters which were referred to in the further amended application which was filed in the FMCA even though the notice of appeal (set out at [15] above) refers to them. I see no error in the Federal Magistrate's reasons relating to them.
30 It was put for the appellant that the Tribunal and the FMCA had failed to address the question of whether the appellant had been persecuted by reason of his membership of a particular social group. The particular social group was something like 'Lebanese lawyers' or 'Lebanese divorce lawyers' or 'high profile Lebanese divorce lawyers'.
31 The Tribunal accepted that in particular circumstances, members of a particular occupational group could constitute a 'particular social group' within the meaning of the Convention. The Tribunal made it clear, however, that the threats made to the appellant as a consequence of his work were made to him personally by disgruntled people with whom he had had dealings. The Tribunal recorded that the appellant had said that he had not received general threats in the context of his work, although it had been suggested to him that he should get out of that line of work. The Tribunal stated:
'It is clear from his evidence that the threats he did receive were in the specific context of individual cases.'
Later, the Tribunal said that the appellant had been threatened, not because he was a member of a particular occupational group, but:
'...because in the course of his work he aggravated people whose interests were adversely affected thereby.'
32 The Tribunal said that while this was an unfortunate occupational hazard, it was not harm against which the Convention protection was available.
33 The findings that the Tribunal made to the effect that the threats were directed to the appellant personally because of particular dealings he had had with particular individuals, makes it impossible to find that he was being persecuted by reason of his membership of a particular social group, however defined.
34 A second issue raised by Mr Sarkis on the appeal was a failure to accord procedural fairness by putting country information to the appellant. Although I did have some doubt about this at one stage, I have come to the conclusion that the submission of Mr Johnson, counsel for the Minister, should be accepted, namely, that the Tribunal did not rely upon country information. It is true that the Tribunal stated:
'I have no doubt that had the militia wanted to kill the applicant they could have done so at any time during the anarchy of the war years with impunity.'
I do not think, however, that this general statement is anything more than a statement to the effect that any militia seeking to kill the applicant could have done so over the period of many years, which the appellant accepted as the period during which the militia had been after him.
35 In relation to the 'splinter group' said to be now operating in a clandestine fashion in Lebanon, it should be noted that, according to the Tribunal's reasons for decision, it was the appellant himself who said that 'there are some members of the militia who now enjoy protection from the government and have resumed their campaign against him'. The Tribunal did not rely on country information: it relied on the claims made by the appellant himself.
36 For the additional reason that the matters raised on behalf of the appellant on the appeal are not accepted, the appeal should be dismissed.