The applicant is a national of Nepal who arrived in Australia in March 2000. On 7 April 2000 he applied for a protection visa assisted by a person whose identity was not disclosed on the application. A statement attached to the application explained his reasons for fearing persecution if he returned to Nepal.
The applicant referred to running a business as a welder in Nepal after returning from working in Singapore in 1997, and continuing in that occupation until 2000. He said he became a member of the Nepali Congress Party District Committee in his village. In January 2000 he received extortion demands by members of the Maoist Party, and in late February 2000 he and his family had a traumatic experience when the Maoists threatened them with revolvers and locked them in the kitchen when stealing all his valuable property. He complained to the police but, in his opinion, "they seemed themselves as helpless and terrified". He then went to Kathmandu, and left his family there whilst seeking protection overseas.
The visa application was refused by a delegate in a decision made on 28 April 2000, which was notified to the applicant at two addresses provided by him to the Department of Immigration.
The applicant appealed to the Refugee Review Tribunal and attended a hearing of the Tribunal on 28 May 2002. He made a submission putting forward country information showing that the Maoists had become more of a threat in Nepal since his departure.
The Tribunal handed down a decision on 20 June 2002. In a brief statement of reasons it accepted that the applicant was involved in the Congress Party, as was his father. It accepted that the applicant had been the subject of Maoist demands, and that they had threatened to kill the applicant and his family. It said "The Tribunal accepts that the applicant has a genuine subjective fear of being harmed by the Maoists in Nepal if he should return there".
However the Tribunal decided that Australia did not owe protection obligations to the applicant. The Tribunal referred to the safe haven provisions in , (4) and (5) of the , but did not apply those provisions. Rather, it applied a construction of the general qualification for a protection visa provided by , that an applicant be a person to whom Australia owes protection obligations. This construction held that Australia owed no protection obligations to a person who had "effective" protection in a third country, even if his situation did not come within the provisions of , (4) and (5). The present Tribunal referred to , which supported that construction of The Tribunal then affirmed the delegate's decision, based on its findings that:
The Tribunal finds that as a matter of practical reality, the applicant is able to enter and re-enter India lawfully and reside there and work and buy property as if he were a citizen of that country without fear of being refouled to Nepal.
The Tribunal's earlier discussion of the law makes it clear, in my opinion, and the Minister does not contend otherwise, that these findings addressed the perceived principle of 'effective protection' under s.36(2) rather than the safe third country provisions of s.36(3), (4) and (5).
A subsequent decision of the High Court in NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2005] HCA 6; (2005) 222 CLR 161 over-ruled the Thiyagarajah principle. The Minister now concedes that, applying the High Court's opinions with hindsight, the present Tribunal's decision displays an error of law which amounts to a jurisdictional error in its exercise of jurisdiction in May 2002.
The Minister has not sought to uphold the Tribunal's decision on the basis that it made findings of fact which could be sufficient if the Tribunal had addressed issues under ss.36(3), (4) and (5) (compare my earlier decisions of SZEAS v Minister for Immigration[2005] FMCA 1776 & SZFKD v Minister for Immigration[2006] FMCA 46). Nor does the Minister submit that the applicant would inevitably have failed if the Tribunal had made findings under s.36(3), (4) and (5). I do not consider that I could make that finding, in circumstances where the Indian domestic laws and immigration practices relating to the India Nepal Treaty of Friendship appear not to be clear (compare my judgments cited above and SZGXK v Minister for Immigration[2008] FMCA 822, also SZGXK v Minister for Immigration & Citizenship[2008] FCA 1891, SZGXK v Minister for Immigration & Citizenship[2009] HCASL 170, WAGH v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 194; (2003) 131 FCR 269, SZLAN v Minister for Immigration & Citizenship[2008] FCA 904; (2008) 171 FCR 145, and SZMWQ v Minister for Immigration & Citizenship[2010] FCAFC 97).
The letter communicating the Tribunal's 2002 decision to the applicant was brief, and its second paragraph said:
What if I disagree with the Tribunal's decision?
You may have a limited right to seek review of this decision by the Federal Court, Federal Magistrates Court and/or the High Court. There are strict time limits within which an application for review by the Courts must be filed. I strongly advise you to promptly seek legal advice if you wish to seek review by the Courts.
The applicant concedes in his present affidavits and oral evidence that he received that letter, although he does not recall reading it or it being read to him. He asks me to accept that he had no knowledge at that time that he could apply to the court for judicial review. However, I do not accept his evidence in that respect, although I accept that he may now have no memory of being aware in June 2002 that he could apply to the court for a review of the Tribunal's decision. It seems to me that he must have been aware of such a right, either from the Tribunal's letter or from the people who were helping him.
It is clear that in 2002 he made a decision not to go to court, but to apply to the Minister for Immigration for an exercise of the Minister's discretionary power under s.417 of the Migration Act. A letter addressed to the Minister was received on 19 July 2002, and refers to the date and outcome of the Tribunal's decision. The letter is an 8 page submission referring to conditions in Nepal and explaining why the applicant was "not satisfied with RRTs decision". It was supported by further extensive material about conditions in Nepal at the time.
The applicant's application under s.417 was acknowledged. By letter dated 13 February 2003 the applicant was then informed that the Minister had decided:
Not to consider exercising his power in your case. I now ask that you contact the nearest regional office of this department to discuss your status in Australia.
In accordance with the advice previously given to the applicant, his bridging visa had expired before that letter was received. He then appears to have become unlawfully resident in Australia.
The applicant claims to have been uncertain in the period prior to receipt of the 2003 letter whether he had a continuing right to stay in Australia. I would not disbelieve that claim, however I do not accept that such a belief could have continued after receipt of the letter in February 2003.
On the applicant's own affidavit he then went to a migration agent to take advice about his immigration position. The applicant's affidavit states:
8. After I received the second letter, I went to a migration agent. He said to me words to the effect that he would charge me $7,000 to apply for review of the decision.
9. I was and still am unemployed. I was and still am unable to raise that kind of money. Since 2000, I have lived with and been supported by friends in the Nepalese community, in Liverpool, Cabramatta, Marrickville and Granville. Sometimes I help clean where I am staying, but I have not been paid by them. Living with friends is part of the Nepalese culture, and is different from Australia where families live by themselves.
10. In or around early 2006, I met a pastor in a church at Cabramatta. To the best of my recollection, he said that if I was able to get information about my case, the church might be able to assist me.
11. After the meeting, on 6 February 2006, I requested documents about my case under the Freedom of Information Act. I refer to page 147 of the Court Book. A friend filled out the document, and I signed it in English and Nepalese.
12. On 21 March 2006, the department wrote to me that they were considering the request, and on 30 November 2006, it advised me that the documents would be released. I refer to pages 148 and 149 of the Court Book. To the best of my recollection, I did receive documents but I don't remember whether or not I had to pay for them.
13. When I went back to the pastor, he told me to the effect, "we have your documents now. It has to go to the lawyer, Mr David Bitel. It may cost you $7,000 or $8,000 now and maybe more in the future".
14. As I have said, I was unable to raise that kind of money. I did not go to see Mr Bitel.
15. In late 2009, I met some people who attended the Australian Nepalese Christian Community Church in Granville. One of the people working with the church told me to the effect, "You are living here illegally. It was not right for you to continue to live illegally, that you should apply for review, and that the community members might be able to assist you financially and help you generally".
16. A student assistant helped me fill out application. The justice of the peace who witnessed my affidavit dated 22 February 2010 and filed on 17 March 2010, Mr Lokman Easpo Limbu, is a pastor at the church.
17. I have not had the means to pay for someone to make the application on my behalf. Also, I only became aware of the pilot mugration scheme when I made this application.
The applicant was cross-examined about whether he had consciously or deliberately avoided informing the Department of Immigration about his changes of address. I have considered his evidence and conclude that he was conscious that he was staying in Australia without legal permission, and allowed his immigration status to remain uncertain, that is, not addressed by the Department. I think he was probably conscious that he should clarify and regularise his immigration status, but found himself unsure about how to do that, and was unable to obtain the best legal advice on what to do. However, such a situation often faces immigration applicants in this country, and does not necessarily excuse long delays in challenging the legality of immigration decisions. It is the experience of the Court that many similar people, and the people who help them, are aware generally that applications can be made to Court, and should be brought promptly, even without the best legal assistance. I find that the applicant decided, first in 2003 and then in 2006, not to apply to Court to exercise a right he was aware existed, and did so because he thought he would need an expensive lawyer to succeed in such an application.
The applicant's opinions in this respect changed in 2010, when he brought the present application without legal assistance. His application does not raise any clear ground of jurisdictional error, and shows no appreciation of principles of jurisdictional error. The s.36(2) point identified above, which with hindsight provides jurisdictional error affecting the Tribunal's decision, was a point which I drew to the attention of the parties at the First Court Date, and was then embellished by counsel to whom the applicant was referred under the free legal advice scheme. This, no doubt, is understandable because it required investigation of past legal controversies outside the comprehension of ordinary immigration applicants and, indeed, ordinary Australians. However, ignorance of the niceties of law is not in itself an acceptable excuse for inordinate delay in challenging administrative actions.
The application to this Court, which was filed on 17 March 2010, requires an extension of time under s.477(2) of the Migration Act to be competent. The 35 day time limit was introduced by the Migration Legislation Amendment Act (No. 1) 2009 (Cth), and can be extended if the Court is satisfied "that it is necessary in the interests of the administration of justice to make the order". A transitional provision applies the time limit to decisions made before the commencement date of the amendments on 15 March 2009. In effect, it causes a 35 day time limit to run from that date for all old decisions. That period ended on or before 21 April 2009, and the applicant's present application requires an extension of time in the region of 11 months.
That period is a substantial extension of time. Moreover, the applicant's preceding delays in applying to the court during the years when there was no valid time limit on such applications should also, in my opinion, be taken into account when deciding what is "necessary in the interests of the administration of justice" (compare Crennan J in MZXLD v Minister for Immigration & Citizenship[2009] HCATrans 282). I have in several cases taken into account delays preceding the introduction of the 35 day time limit (see, for example, SZOBJ v Minister for Immigration[2010] FMCA 444 at [27]).
There have been a number of judgments of this Court discussing the considerations which should be balanced when exercising the power to extend time under s.477(2) (see for example, the review of authorities by Barnes FM in SZNZU v Minister for Immigration[2010] FMCA 197 where she refers, inter alia, to a decision of Nicholls FM in SZMFJ v Minister for Immigration[2009] FMCA 771 and to my judgment in SZNZI v Minister for Immigration[2010] FMCA 57).
In SZNZI I suggested that the critical issues are whether a reasonable explanation for the delay in coming to court has been provided, and the merits of the judicial review grounds. In the latter respect, it is conceded by the Minister that the present application has merit, in the sense that jurisdictional error affecting the Tribunal's 2002 decision can now be identified. It is, however, submitted that the applicant's explanation for his previous delay in challenging the validity of that decision should not be accepted as sufficient to establish a 'necessity' in the interests of justice for an extension of time to allow the matter to be remitted to the Tribunal for further consideration.
Both counsel referred me to judgments which have considered the Court's discretion to refuse relief in relation to applications for judicial review, even where jurisdiction is unconfined by a statutory time limit. There is no doubt that lengthy delays have caused applications for judicial review of refugee matters to be refused in some cases, notwithstanding the identification of jurisdictional error (see for example Minister for Immigration & Citizenship v SZIQB[2008] FCAFC 20 at [30]). In that case the Full Court thought that the absence of a "satisfactory explanation of why the application was not made earlier" was sufficient to refuse relief in a situation where they found that the applicant had:
Deliberately (undertaken) a course of conduct that would render it difficult, if not impossible, for the Tribunal, his migration agent and the Department of Immigration to find him. We are also satisfied he made no real effort to ascertain the fate of his application to the Tribunal.
The present circumstances are different, in that the applicant was fully aware of the fate of his application to the Tribunal soon after its decision, and then made a decision to pursue an application for an exercise of Ministerial discretion rather than judicial review. At the time of the Tribunal's decision, this choice might have appeared reasonable even to lawyers conversant with the state of authorities on s.36(2) at the time. However, it would have been possible for the applicant to have pursued the arguments which were eventually accepted by the High Court when it gave judgment on 2 March 2005.
I do not need, in the present case, to decide whether choosing to pursue a s.417 option before commencing judicial review would provide a reasonable explanation for not commencing the litigation promptly. There are recent suggestions that it would not (see for example Vu v Minister for Immigration & Citizenship[2008] FCAFC 59 at [32] and also Crennan J in Plaintiff M90/2009 v Minister for Immigration & Citizenship[2009] HCATrans 279 citing Hayne J in Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai[2004] HCATrans 364).
What is clear, is that after the present applicant became aware in 2003 that the Minister would not intervene, he adopted a course of conduct which involved consciously postponing any approach to the Court to review the legal validity of the Tribunal's decision until after a further inordinate time had elapsed.
In my opinion, recognising the practical reasons discouraging him from exercising his right of judicial review, there is an overwhelming contrary consideration which prevents his delays both before and after commencing his present applicant being regarded as excusable in the interests of the administration of justice. That consideration is the consideration pointed to in relation to powers to extend time to seek judicial review orders, which was referred to by McHugh J in Re Commonwealth of Australia; ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470. His Honour said:
Where an applicant seeks the issue of the constitutional or prerogative writs a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials and the public interest requires that there be an end to litigation about the efficacy of such acts or decision.
In the present case, the Tribunal's decision about the applicant's refugee status was made in 2002. It addressed the applicant's claims in the light of Nepal's circumstances at that time, and was treated as legally efficacious until the bringing of the present application.
Considering the practical prejudice to the applicant from refusing to entertain the present application, it is impossible to assess whether he would have succeeded before the Tribunal if it had addressed the matter in 2002 without making its error of law. The applicant has not claimed that he now has as good or better case on the merits in relation to obtaining Australia's protection under the Convention, as he had in 2002. The Court cannot inform itself one way or the other about current conditions in Nepal.
Weighing up the interests of the administration of justice in relation to the review of the present Tribunal's decision, in my opinion, there is a clear public interest in leaving undisturbed the decision made in 2002. In my opinion, that consideration outweighs the interests of justice in the applicant now having a right to avail himself of the good legal argument arising from of the High Court's decision in NAGV published in 2005.
Taking into account the above matters, and all the other considerations suggested in the above authorities, I have not been persuaded that I should extend the 35 day period applicable to the applicant's present application for review. I shall therefore refuse that application. The application is therefore incompetent and should be dismissed on that ground.
[2]
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM
Parties
Applicant/Plaintiff:
SZOGT
Respondent/Defendant:
Minister for Immigration & Anor [2010] FMCA 613
Cases Cited (21)
SZOGT v Minister for Immigration & Anor [2010] FMCA 613 (9 August 2010)
Minister for Immigration & Citizenship v SZIQB[2008] FCAFC 20