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[2005] FCA 1199
Federal Court of Australia
2005-08-23
Lindgren J
Original judgment source is linked above.
introduction 1 The appellant appeals from a decision of the Federal Magistrates Court of Australia ('FMCA') delivered on 23 May 2005 (SZEIK v Minister for Immigration [2005] FMCA 777). The FMCA dismissedan application by the appellant for review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 23 December 1996. By that decision the Tribunal affirmed a decision of a delegate of the respondent Minister (respectively, 'the Delegate' and 'the Minister') not to grant a protection visa to the appellant. 2 The appellant, a national of Lebanon, arrived in Australia in August 1993. He applied to the Department of Immigration and Ethnic Affairs ('the Department') on 12 November 1993 for refugee status and a domestic protection temporary entry permit. The application for that permit later also had effect as an application for a Protection (Permanent) Entry Permit. 3 In its reasons for decision the Tribunal explained that on 1 September 1994 the 'protection visa' was introduced for people in Australia seeking protection as refugees (s 36 of the Migration Act 1958 (Cth) ('the Act')). From that time decision makers were required to deal with refugee-related applications as if they were applications for a protection visa: s 39 of the Migration Reform Act 1992. 4 The Delegate decided on 31 March 1995 that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention and therefore refused the grant of a protection visa to him.
THE REASONS OF THE TRIBUNAL 5 The appellant's application to the Tribunal was made on 20 April 1995. He attended hearings before the Tribunal on 9 December and 17 December 1996. 6 The appellant claimed to fear persecution if he were to return to Lebanon on the basis of threats which had been made to him when he lived there. He is a Roman Catholic and claimed to have been a divorce lawyer in Lebanon. He alleged that he was threatened on account of the work which he did as a divorce lawyer. 7 Separately, he claimed to have been threatened by members of a militia and political party. He claimed that his house had been bombed and on a separate occasion that shots had been fired at his office. 8 The Tribunal found the appellant to be 'an essentially credible witness' and a person who was 'very sincere' and who had 'shown a great deal of integrity in very difficult circumstances'. 9 The Tribunal member accepted that the appellant was suffering from anxiety which caused symptoms such as lack of concentration and poor memory, and that some gaps in his testimony could be attributed to these problems as well as to the lapse of time since he lived in Lebanon. 10 The Tribunal accepted that the appellant had been subjected to 'threatening and intimidatory behaviour over a number of years', which had been 'directed at him in the course of his work and because of his relationship with the militia'. However, the Tribunal placed the bomb and shooting incidents in the context of a 16 year civil war in Lebanon in which individuals were the random victims of the violence. The Tribunal did not accept that the bombing was anything other than the result of an indiscriminate attack in which the appellant's house suffered random damage. Similarly, the Tribunal did not accept that the shooting indicated a serious intention on the part of the militia to harm the appellant. The Tribunal thought that the explanation given to the appellant by the police was probably correct, namely, that the shooting was probably by a drunken gunman. 11 Dealing separately with the question of threats, the Tribunal thought that the work-related threats did not constitute persecution for a Convention reason, because they were made by disgruntled individuals with whom he was involved. 12 One threat was made because the appellant refused assistance to a militia member in connection with a fraudulent transaction, and was therefore similarly not based on a Convention ground. Other threats from the militia made over a considerable period without any follow-up did not, in the member's view, ascend to the level of persecution. 13 The Tribunal also thought it implausible that the appellant would still be of interest to any remaining 'splinter group' of the militia. The appellant claimed that there remained some members of the militia who now enjoyed government protection, and it was this group to which the Tribunal member referred as a 'splinter group'. The Tribunal member said that there was no doubt that if the militia had wished to kill the appellant they could have done so with impunity at any time during the anarchy of the war years.
THE APPLICATION BEFORE THE FMCA 14 The appellant applied to the FMCA for relief under s 39B of the Judiciary Act 1903 (Cth). The Federal Magistrate dismissed that application for two reasons. The first was unwarrantable delay in the making of the application. The second was that the various grounds relied upon were not made out. I refer to these grounds further below.
THE PRESENT APPEAL 15 The appellant's notice of appeal to this Court states as a ground: 'The grounds listed in my previous application of 15-12-04 (filed) to be considered. His Honour, Scarlett J, showed sympathy & invited me to lodge a review. The RRT decision is to be reconsidered.' (The reference is to the appellant's further amended application filed in the FMCA.) 16 On the hearing of the appeal, the appellant was accompanied by Mr Toufic Sarkis, who sought leave to assist the appellant. According to the Magistrate's reasons for judgment, Mr Sarkis had assisted the appellant in the FMCA 'as a McKenzie friend'. I granted leave to Mr Sarkis to address submissions to the Court on behalf of and in the presence of the appellant on the appeal. 17 The first matter to be considered is that of delay. The Tribunal's decision was handed down on 24 December 1996 and he joined in a class action known as the 'Lie representative action' (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601) on 16 July 1999. An order nisi was refused on 20 February 2004 (the appellant was one of some 707 applicants dealt with in S1174 v Refugee Review Tribunal [2004] FCA 289). As a result of undertakings given in the representative proceeding, the respondent Minister does not rely on the effluxion of time between the appellant's joinder to the class action and the refusal of the order nisi. The appellant launched the proceeding in the FMCA on 6 September 2004. 18 The total delay relied on by the Minister may therefore be summarised as follows: Period from Tribunal's decision on 24 September 934 days 1996 to joinder in class action on 16 July 1999: Period from refusal of order nisi on 20 February 199 days 2004 to commencement of FMCA proceeding on ------------ 6 September 2004: 1133 days Total: =======
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.
CONCLUSION 37 The appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.
Associate: Dated: 7 September 2005 The Appellant appeared in person. Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Clayton Utz Date of Hearing: 19 August 2005 Date of Judgment: 23 August 2005
SZEIK
Minister for Immigration & Multicultural &
[2005] FMCA 777
(2002) 190 ALR 601
(1949) 78 CLR 389
(1980) 31 ALR 565
(2000) 204 CLR 82