SZGFR v Minister for Immigration and Multicultural Affairs

The appeal and its disposition 6 The appellants filed a notice of appeal in this Court on 1 December 2005. The grounds of appeal were two-fold:

1. That the learned Magistrate erred at law when exercising his discretion to not grant relief by reason of delay.
2. The learned Magistrate erred at law by failing to find that the second respondent committed jurisdictional error of law in the making of its purported decision handed down on 13 March 2001. 7 As particulars of the first ground, the appellants pointed to the Federal Magistrate's failure to consider the merits of the case and to take into account the nature and gravity of any jurisdictional error made by the Tribunal. The appellants submitted that his Honour should have taken those matters into account in deciding whether to exercise the discretion to refuse relief. 8 In identifying the error of law made by the Tribunal, the appellants repeated the claims made in their amended application to the Federal Magistrates Court and contended that his Honour had failed to consider or make any findings in relation to those claims. The grounds identified before the Federal Magistrate were that the Tribunal failed to exercise its jurisdiction under the Act and/or committed an error of law in making its decision. The particulars identified in the notice of appeal, which were the same as those in the amended application, were as follows:: (i) the Tribunal failed to consider a material claim made by the appellant, in that her inability to practice her religion because she could not attend her church for fear of harm, was in itself serious harm capable of amounting to persecution; (ii) the Tribunal failed to apply the correct test at law, being the "real chance test", in considering the persecution feared by the appellant; (iii) the Tribunal failed to apply the correct test at law on the question of effective state protection; and (iv) the Tribunal failed to apply the correct test at law on the question of internal re-location, and further in undertaking its consideration of this issue, the Tribunal failed to issue a mandatory notice under section 424A in relation to the information the appellant "has vocational qualifications and work experience and has been prepared to come to a foreign country and maintain herself and her child in an unfamiliar environment", and that information was part of the reasons for affirming the decision under review. Section 426A did not relieve the Tribunal of its obligation under section 424A. 9 The appellants further submitted that if the Tribunal committed a jurisdictional error, the Federal Magistrate's refusal to grant relief by reason of delay had the potential effect of giving rise to Australia failing to comply with its obligation under international law in respect of its duty to provide protection under the Convention relating to the Status of Refugees (as amended). The appellants claimed that the potential outcome was that they could face serious harm. It was submitted that such matters should also have been taken into account by his Honour in the exercise of discretion. 10 It was common ground that the power exercised by the Federal Magistrate to dismiss the application because of delay was a discretionary one. It also appeared to be common ground that the issue of whether his Honour erred in the exercise of that discretion was to be resolved by applying the principles enunciated in House v the King (1936) 55 CLR 499. Of particular relevance to this case is the principle that, in an appeal from an exercise of discretion, an appellate court should review the primary judge's determination, and may substitute its own discretion, where the judge "does not take into account some material consideration" (at [505]). 11 In his reasons at [19] and following, the Federal Magistrate set out the submissions made on the appellant's behalf concerning why the Tribunal had fallen into jurisdictional error. The same submissions are made in this appeal and will be referred to shortly. The Federal Magistrate identified the principles to be applied when exercising the discretion as follows (at [26] and [27]): "The Court has a discretion to dismiss an application for a constitutional writ in cases where there has been unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (see R v Australian Broadcasting Tribunal; Ex parte Fowler(1980) 31 ALR 565; Naguit & Anor v Minister for Immigration[2005] FMCA 930; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 283). Unwarrantable delay justifies the withholding of relief (see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd(1949) 78 CLR 389 at 400). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion (see RE Commonwealth of Australia: Ex parte Marks(2000) 177 ALR 491 per McHugh J at 495-6)." 12 Immediately after these passages, the Federal Magistrate discussed the appellants' delay in bringing the proceedings and various authorities in which delay had been considered as a basis for refusing relief. At no point in his reasons did the Federal Magistrate assess whether the ground sought to be raised by the appellants was arguable. In the passage set out above, his Honour referred to the Full Court judgment of this Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283. In that matter, the Full Court said (at [12] and [13]): "Mr Silva, who appeared as solicitor for the appellant on the hearing of the appeal also contended that the learned primary Judge had erred in exercising the discretion without reaching a final conclusion on the substantive merits of the case for the grant of a protection visa. He referred in support of this argument to these observations of Heerey J in VQAN v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 (19 December 2003); '21 Goldberg J [in M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146]did not proceed on the basis that delay could be the sole consideration in exercising the discretion to refuse relief. His Honour in fact considered the merits of the proposed application at some length: see [24]-[34]. 22 I conclude therefore that it would not be a proper exercise of discretion to completely ignore the applicant's prospects of success. This was not in fact done in the cases relied upon by counsel for the Minister. Moreover, his argument seems to be, practically speaking, inconsistent with the course adopted by the Full Court in Ngu. 23 If, as I therefore hold, the substantive merits must be considered, two approaches are possible. The substantive arguability might be considered as part of a balancing exercise, so that the longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits. Alternatively, the court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of jurisdictional error is made out, then consider whether relief should be refused because of delay or other discretionary factors. This question was not argued. It is not necessary to express a conclusion because in the view I take the same ultimate result would be reached whichever approach were adopted. I would express a tentative preference for the latter, which seems more consistent with the reasoning of Gaudron and Gummow JJ in Aala at [54] et seq.' However, we do not understand Heerey J in that passage to have done more than express a preference for one of two judicial approaches. He clearly did not go so far as to say that it was legally impermissible to reach only a provisional view about the applicant's prospects of success on the substantive merits and then take that provisional view into account in exercising the discretion. Moreover, the learned primary Judge in the present case was precluded from reaching a concluded view on the substantive merits because the circumstances which the appellant claimed constituted the denial of procedural fairness discussed below meant that matters which might have tended in favour of acceptance of the appellant's case were not before the Tribunal or the Court. It is clear that his Honour evaluated separately from the exercise of the discretion to extend time the appellant's claim that the Tribunal denied him procedural fairness." 13 In my opinion, two propositions emerge from these passages. The first is that in determining whether an applicant should be denied relief because of delay, it is necessary to consider the applicant's prospects of success. So much is apparent from the Full Court's citing, with approval, observations to that effect by Heerey J in VQAN v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541. The second is that in considering the applicant's prospects of success, it is unnecessary to determine, in a concluded way, whether the grounds sought to be raised can be made out. So much is apparent from the Full Court's reasons at [13], in which it made clear that while it was necessary for the judge to consider an applicant's prospects of success, it was sufficient to consider whether the grounds were arguable. That is, it was sufficient for a judge to reach a provisional view about an applicant's prospects of success and for that view to be taken into account in exercising the discretion. While some authorities establishing these principles concern applications for an extension of time, others concern the discretionary power to refuse relief in applications for constitutional writs because of delay. However, I doubt whether there is a material distinction between the two situations. 14 It would appear to follow that, having regard to the judgment of the Full Court, the Federal Magistrate erred in failing to consider the strength of the appellants' case. His Honour set out at [11] of his reasons the grounds relied on by the appellants as establishing error of the Tribunal in assessing their claims. However, there was no analysis of the appellants' grounds in His Honour's reasons. I do not think it should be inferred from the reasons, as I was invited to do by counsel for the Minister, that the Federal Magistrate considered the arguability of the appellant's case. Ordinarily, what was considered by a judge is to be ascertained from the judge's reasons and those reasons indicate no more than an acknowledgement that certain ground were raised by the appellants. 15 One of the cases cited by his Honour in support of the proposition that he was not required in the circumstances to determine whether there was jurisdictional error was R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565 ("Fowler"). In that case, the High Court ordered that an application for constitutional writs be dismissed because of the unwarrantable delay in commencing the proceedings. The Court expressly did so (at 570) "whether or not the prosecutors would otherwise have been entitled to relief, a question on which it [was] unnecessary to express any views". The approach of the High Court does not sit entirely comfortably with the reasoning of the Full Court in S58. However, I doubt that the High Court was intending, by this judgment, to establish a principle that it was unnecessary for a court to consider the strength of the applicant's case when dismissing an application for constitutional writs because of unwarrantable delay. Later High Court authority is clear on the link between delay as a consideration in the exercise of a discretionary power which might preclude a party from litigating a case, and the strength of that party's case: see for example Gallo v Dawson (1990) 93 ALR 479 at 480. 16 Ultimately, whether it is necessary as a matter of principle to consider the strength of an applicant's case is not decisive in these proceedings. That is because the appellants' case almost certainly would not succeed. The appellants' case has four elements. First, the Tribunal failed to apply the correct legal test in assessing whether the appellant mother had a well founded fear of persecution. It did not apply the "real chance" test. Secondly, the Tribunal fell into legal error in its consideration of whether there was effective state protection. Thirdly, the Tribunal failed to apply the correct legal test in determining whether the appellants could relocate in Indonesia. Fourthly, the Tribunal failed to comply with s 424A by failing to provide the appellants with particulars of certain information. That information was that the mother had vocational qualifications and work experience and had been prepared to come to a foreign country and maintain herself and her child in an unfamiliar environment, on which the Tribunal's finding concerning the capacity of the appellants to relocate was based. 17 The appellants' solicitor accepted that at least the first three grounds were interrelated. That is, if there was no arguable case in relation to any one of them, there was no arguable case of jurisdictional error. In my opinion, that concession is correct. It is unnecessary to discuss in detail the various arguments because the Tribunal's consideration of effective state protection is, in my opinion, entirely unexceptionable. It is not even arguably infected by legal error. The gist of the submission was that the Tribunal did not address matters of the type considered by the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 478 and referred to in the decision of the European Court of Human Rights cited by the members of the High Court, Osman v United Kingdom (1998) 29 EHRR 245. 18 However, the Tribunal did consider whether effective state protection would be provided if the appellants returned to Indonesia. It indicated, in at two points in its reasons, that it was not satisfied, on the material before it, that the Indonesian authorities promote, condone or permit persecution of Christians in Indonesia or withhold reasonable protection. The Tribunal also found that the authorities had consistently reacted very strongly against incidents of Muslim violence against Christians which they have characterised as harming inter-religious relations and social harmony. These findings of fact were sufficient to deal with (adversely to the appellants) the question of state protection. The way the Tribunal considered the matter reveals that it was aware of the desirability of addressing the question and the relevant legal principles which should guide its assessment. As to the appellants' argument concerning s 424A, it is clear that the Tribunal's decision was not based only or even primarily on its findings relating to the reasonableness of relocation. Therefore, even if the Tribunal breach s 424A as alleged, on which it is unnecessary to express a view, the ground would not have justified the orders sought by the appellants in the Federal Magistrates Court. 19 Even if the Federal Magistrate erred in failing to consider whether the appellants had an arguable case in deciding to dismiss the application for unwarrantable delay, the order dismissing the application should not be set aside. For the reasons given by his Honour, there was unwarrantable delay in bringing the application, and for the reasons I have given, there was no arguable case. It was therefore appropriate that the application be dismissed. Accordingly, this appeal should be dismissed. 20 I should deal with one last point raised by the appellants. It was to the effect that the delay of the appellant mother should not be attributed to the appellant son in the same way, since in reality he was not at fault as he was not responsible for that delay. There was also a further argument which appeared to hinge on acceptance of the first argument, which was that if the Tribunal's decision was set aside for the purposes of the appellant son's application, his Honour should have then taken into account that the first appellant was his mother and exercised the discretion in her favour also. However, I do not think such a distinction can be made between the two appellants. Whether the appellant son was granted a protection visa depended on whether his mother was granted one. If the mother's application to the Federal Magistrates Court was dismissed for unwarrantable delay, then the Tribunal's decision affirming the decision to refuse to grant her a protection visa would remain effective. The Tribunal's decision also determined whether the appellant son should be granted a protection visa. 21 The appeal should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the Applicant: Parish Patience

Counsel for the First Respondent: M S Henry Solicitor for the First Respondent: Phillips Fox

Date of Hearing: 29 May 2006 Date of last submissions: 1 June 2006