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MIGRATION - Protection visa - RRT failed to address significant part of claims - Six years delay with involvement in Muin and Lie - Relief not refused.

SZDUB v Minister for Immigration [2004] FMCA 571 (14 September 2004)

SZDUB v Minister for Immigration [2004] FMCA 571 (14 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDUB v MINISTER FOR IMMIGRATION
[2004] FMCA 571



MIGRATION - Protection visa - RRT failed to address significant part of claims - Six years delay with involvement in Muin and Lie - Relief not refused.



Administrative Decisions (Judicial Review) Act 1977 (Cth), s.16

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss. 36, 48A, 48B, 417, 474(1), 474(2), 479, 483A, Part 8

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289

Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Muin and Lie v Refugee Review Tribunal [2002] HCA 30

NACP v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 458

NAUV v Minister for Immigration [2003] FCA 1319

NAUV v Minister for Immigration [2004] FCAFC 124

Peko Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287

SZAOU v Minister for Immigration [2004] FMCA 451

SZAOV v Minister for Immigration [2004] FMCA 223

SZCTH v Minister for Immigration (No 2) [2004] FMCA 284

SZEDF v Minister for Immigration [2004] FMCA 497

VWBS v Minister for Immigration [2004] FCA 464

Applicant:
SZDUB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1746 of 2004



Delivered on:


14 September 2004



Delivered at:


Sydney



Hearing date:


1 September 2004



Judgment of:


Smith FM



REPRESENTATION

Counsel for the Applicant:


Mr Shaun Kerrigan



Solicitors for the Applicant:


Ebsworth & Ebsworth



Counsel for the Respondent:


Mr Justin Smith



Solicitors for the Respondent:


Australian Government Solicitor



ORDER

The matter be re-listed for the making of final orders.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SYG 1746 of 2004

SZDUB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



Respondent


REASONS FOR JUDGMENT

1. This is an application to this Court invoking its jurisdiction under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal which upheld the refusal of a protection visa to the applicant.

2. Section 483A gives the Court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". The jurisdiction of the Federal Court is its general judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by s.39B of the Judiciary Act 1903 (Cth) but subject to added limitations under Part 8 of the Migration Act.

3. A judicial review jurisdiction can provide a remedy to an aggrieved person only where a legal defect can be identified in the administrative action under challenge, and it is axiomatic that it does not extend to correcting an error which is merely an error of fact or of judgment on the merits.

4. Significant limitations on the Federal Court's general judicial review jurisdiction are imposed by Part 8 of the Migration Act on any application to the court which is "in respect of a privative clause decision" as defined in s.474(2). For such applications, which include applications for review of decisions of the Refugee Review Tribunal, the simple language of s.474(1) appears to prevent the Court from giving any remedy for a defect of any kind. The simple language is subject to implied Constitutional qualifications, but these still leave the Court with reduced power to intervene in relation to a Tribunal decision if it answers the definition of `a privative clause decision' in s.474.

5. I need not address the Constitutional qualifications further in this case, since the present applicant has presented his challenge on the basis that he must establish that the decision of the Refugee Review Tribunal is not a "privative clause decision" according to the interpretation of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases. In these cases the High Court has held that limitations under Part 8 of the Migration Act on generally available judicial review remedies do not apply to a challenge to a decision which is in law a nullity because it was vitiated by jurisdictional error. In such a case, where there has been an actual or constructive failure to exercise a power of decision governed by provisions of the Migration Act, this Court can declare void or quash or set aside a purported but legally ineffective decision, and can order that the decision-maker perform or complete its duty to determine the case according to law.

6. In the present case, the applicant contends that the Tribunal fell into jurisdictional error by failing to address a significant claim made by him when it decided that he did not have a "well-founded fear of being persecuted for reasons of ... membership of a particular social group or political opinion" if returned to Nepal within Article 1A(2) of the Refugees Convention as applied by s.36 of the Migration Act. In particular, he argues that the Tribunal failed to address his risk of persecution if returned to Nepal as a member or previous member of a political party which at the time of the Tribunal's decision was alleged to be conducting Maoist insurgent terrorist activities or "peoples war" against the constitutional government of Nepal and its supporters. He contends that the Tribunal addressed only his risk of persecution as a person who had been a member of a political party which participated in democratic political processes within the constitution.

7. If the applicant's contention is made out that a significant claim or component of his claims was not addressed by the Tribunal, then on established authorities he would be entitled to relief unless I were persuaded that this should be refused in the exercise of the Court's discretion (c.f. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [51], [82-3], [95], Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 at [55], citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; as applied in NACP v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 458 at [40]; and SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129, 199 ALR 43 at [44]). I did not understand the respondent to be arguing otherwise.

8. The respondent also accepted that the applicant had presented to the Tribunal a claim based on being associated with a party currently engaged in terrorist or insurgency activities. However, her counsel contended that on a fair reading of the Tribunal's reasons it should be found to have addressed all the applicant's claims. He also argued that, even if the Tribunal had failed to exercise its jurisdiction, relief should be denied due to the long delay between the Tribunal delivering its decision on 20 August 1998 and the filing of the present application on 7 June 2004.

9. To examine how the Tribunal characterised and considered the applicant's claims it is necessary to set out the relevant passages from his written and oral submissions to the Department and Tribunal, and from the Tribunal's reasons.

10. The applicant at the age of 27 arrived in Australia in February 1996 on a six month's student visa. He applied for a protection visa on 12 August 1996 shortly before that visa expired. In his supporting statement, he said:

I left my country as a student to escape from further harassment as I was severely harassed and questioned by the authorities due to my political opinion.

I am a strong supporter and prominent member of hardline communist party namely "Samyukta Janamorcha" (United Peoples Front) and my involvement with this party started to devastate my family life which caused me to stay away from my family society and my country in order to save my freedom, liberty and on top of that, my life.

Since I was in school I was interested in Communist Party. Since then I joined a local branch of Communist Party and received a membership from United Peoples Front (Hardliner Communist Party). We suffered a lot during monarchism and its absolute rule and most of the time we were harassed by the authorities and questioned because of our political opinion. Since people movement against autocratic Panchayat System, all political parties were freed and it was a little relief.

Again when the Congress Party started ruling Nepal, we were harassed more. As a result of that many of our activists lost their lives. This was another type of harassment because of our political opinion. Since the Communist Party lost its power during 1995 , we were harassed more to suppress us from coming back into the power.

In the year of 1990 democracy had been restored in Nepal as an outcome of peoples movement when many people including leaders and students were killed by autocratic Panchayat System.

When I finished school, I had to go to India for further studies because of harassment in school level due to my political opinion and connection with the party.

Since democratic government started ruling in Nepal, Communist Parties got combined for a while with Marxist and Leninist but could not put up with it for very long. Being Communist Party, we couldn't agree with other Communists on our principle and philosophical basis. Our party's main principle was to govern without the king but it couldn't be successful combining with other Communist Parties.

When Communist Party lost power in '95, our party started campaigning on a separate way than Nepali Communist Party and got itself in a dangerous situation.

As I was informed by my family and friends at this stage all activists were in a danger because of advancement in campaigning. So I couldn't return to Nepal.

So looking at the political situation in the country, I'll be foolish to go back and get myself killed because of suppression against our party and our activists.

11. In a letter dated 22 February 1997 to the first instance decision-maker in the Department of Immigration before she made the decision under review by the Tribunal, the applicant responded to a US State Department Country Report:

1. In the first paragraph of this reports says, ...the leaders of the United People's Front launched a "People's War" in Central Nepal, which has been waged through killings and bombings involving both soldiers and civilians... and this information itself is a self explanatory evidence that there is always a risk for Communist (hardliner) activists.

2. I accept that the Constitution provides for freedom of movement and residence but the ruling (party) Government (Prime Minister) always ignore the Constitutional Provisions and people like us are being victimized. For example, the Prime Minister dissolved the Parliament which was found unconstitutional by the Supreme Court...

3. I returned to Nepal on 20 October 1996 because of my father's death. Although, I was very scared to go, but I had no alternative left except to take risk and I was able to hide myself from the eyes of the police until I left Nepal.

4. I seek your protection until our government is formed as I cannot go back to my country now due to the fear of harassment and interrogation.

5. In the paper, Nepal is multi party democratic country but in practice, there is no democracy for us. There are various fractions of the Communist Party and our party is the most targeted one because the Government is determined to destroy our existence. Please refer to the attached News Paper.

12. In his application to the Tribunal dated 4 March 1997, the applicant claimed:

The political environment of Nepal is very instable and after the restoration of Democracy, there has been many changes and no political party is able to form and run the Government properly. Every party leaders are looking for CHAIRS and in order to get the position, they do not hesitate to compromise with any party regardless of their political ideologies.

The political environment of Nepal is very instable and after the restoration of Democracy, there has been many changes and no political party is able to form and run the Government properly. Every party leaders are looking for CHAIRS and in order to get the position, they do not hesitate to compromise with any party regardless of their political ideologies.

Our party is always protested and criticised the unfair compromise among other political parties and in order to let people aware of the situation, we launched various campaigns and programs which are being targeted by the Government and other party workers. In the circumstances, most of our party members are targeted and labelled as terrorists.

Being a prominent member of United People's Front, I was harassed and targeted and I am not in a position to go back to Nepal unless our Government is formed.

As you are well aware, the coalition Government formed by the Nepali Congress has been changed and now, the Panchayet Party (Partyless Panchayet System, an Autocratic Party) supporter and currently known as Rastriya Prajantatra Party has formed the Government with the assistance of Nepali Communist Part, United Marxist and Leninism (SO CALLED).

Because of the above situation, I request you to reconsider my application and I also like to draw your attention to the fact that I had to go back to Nepal due to my father's death in 1996 and at that time I was hiding myself as I was targeted by the authorities.

Should you need an interview is necessary please let me know.

13. The applicant tendered, without objection, a transcript of the proceedings at the hearing before the Tribunal on 11 June 1998. In the course of questioning by the Tribunal, the following exchange occurred:

MEM Um so when did you become a member of the UPF

SR Between 1985

MEM Do you know what the UPF platform was at the time what it was standing for what the leaders of the party were promising

SR Sorry

MEM What were the leaders of the Party promising at that time

SR In those days it was still party political system and the King had absolute power there was no political party organised party like Communist party there were I mean they were underground or something like that and there was too tell the public about human rights and to bring democracy in Nepal and to give people freedom of speech and you know like the real freedom

MEM What particular activities were you involved in

SR I'm involved um what

MEM Political activities

SR Like mass meetings, demonstrations, mass meetings

MEM Do you have any position in the party

SR Sorry no

MEM No, what did you actually do just attend demonstrations

SR Yeah attend demonstrations yeah

MEM So what's your understanding of the present position of the UPF

SR What do you mean by that

MEM Um the um Communist Party what do you understand they're doing now in Nepal

SR They're basically now you know the United People's Front it's a fractured from the Communist party and it has different theory, different philosophy different ideology from the rest of the parties and you know the Communist Party itself

MEM Tell me how the ideology differs now

SR Um I mean its splintered from the Nepalese Communist Party and set its own I mean United People's Front and it has agreed to form any coalition government with other parties you know which the Nepalese Communist Party is now doing they formed a new government a new coalition government with the Nepalese Communist Party

MEM When did this party split take place

SR About 3 years ago something like that 3 or 4 years ago or something like that

MEM What was behind it

SR The main reason was I mean uh, they didn't want to form coalition government at all and also they want to, they didn't want our Party didn't want our King

MEM Do you know who the leaders were at that time

SR It was Dr Bagrh...

MEM Um so where di you stand at this time what was your opinion

SR Well what happened was after I came here now I don't believe in any sort of political party that exists in Nepal like not I mean even Peoples Front not even Communist Party not even Congress Party not even representative party any political party that exists in Nepal because after I came here Australia in 1996 the United Peoples Front with which I was involved started killing people in the villages and you know like lots of violence and still it's been going on these days and they still always and now I find that that's not my way of philosophy my ideology because I joined the Party when I was 15 and now with my experience I want a stable political party who can rule the country who can give the people freedom you know like the freedom of any sort and without violence and yeah also the government that can really practice democratic law

MEM We've heard quite a lot in Australia

SR Yeah it's really a democratic country

MEM So can describe the persecution of discrimination you experienced or suffered as a Party member

SR Yeah I mean phone calls threatening our lives you know and uh

MEM Is there anything else

SR I mean you always feel insecure whoever the ruling government is I mean if we go against them they can do anything and we have to face humiliation in public and authorities they can bash people any them the can and discrimination in job discrimination in a lot of things you know in daily life and basically the ruling government any government that rules the country goes for power and you know and of course in Nepal we call it democratic country but that's not in practice there's no human rights there's no I mean democratic practice going on in Nepal

MEM You went back in 1996 because you father was sick

SR Yeah he was dead and also I had to its our personal belief and being the only son I had to take that risk of going back to Nepal and when I was there I had to be very careful from the reach of authorities and you know

MEM What happened to you when you arrived at the airport

SR The airport nothing really bad happened nothing happened at all but still I was very scared and apprehensive and during my stay in Nepal in 1996 when my father died I spent about 20-21 days I always I never went out of home didn't even see my friends you know I had to stay

MEM So what do you think would happen to you if you returned now

SR Now the problem is I mean um since I was involved with the United People's Front if I withdrew my involvement from the political Party which is I mean from this political party I might be targeted from the same Party you know and if and if I am still involved in the same Party when I go back to the country I would be targeted by the other political Parties but that's basically I mean I'm scared of like my position is now like I'm somewhere in the middle of nowhere you know I mean by my ideology I don't believe in the political Party I was once involved but if I withdraw myself they can do anything since they have been killing people in the villages a lot of people and it's nothing for them to do something you know to kill me or to give me harassment or something like that

14. I consider that essential elements of the applicant's claim for protection under the Convention against being returned to Nepal were:

a) He had from school days been a supporter and prominent member of a hardline communist party named the Samyukta Janamorcha (United Peoples Front or SJM) which at that time was campaigning against autocratic and Congress party governments. Its members were "harassed and questioned because of our political opinion" and "many of our activists lost their lives". As a SJM member he was involved in mass meetings and demonstrations.

b) After democratic government was restored in 1990, all communist parties for a while combined and supported the government, but "we couldn't agree with other Communists on our principle and philosophical basis". His party "always protested and criticised the unfair compromise among other political parties".

c) As a party member he received "phone calls threatening our lives", "you always feel insecure whoever the ruling government is", and "we have to face humiliation in public & authorities they can bash people any time they can and discrimination in job and... a lot of things in daily life".

d) Following unfavourable results in 1995 elections when the communist parties lost government, the leaders of the SJM "started campaigning on a separate way than Nepali Communist Party and got itself in a dangerous situation". Its leaders launched a "People's War" in Central Nepal which was waged through killings and bombings involving both soldiers and civilians.

e) He then decided that he had to leave Nepal. "My involvement with this party started to devastate my family life, which caused me to stay away from my family, society and my country."

f) He left Nepal after being "severely harassed and questioned by the authorities due to my political opinion" and "in order to save my freedom, liberty and on top of that, my life".

g) After he came to Australia in 1996 "the United Peoples Front with which I was involved started killing people in the villages" and "still it's been going on these days" and "now I find that that's not my way of philosophy my ideology".

h) As a consequence of the SJM's change in political tactics, in 1998 "there is always a risk for Communist (hardliner) activists", the SJM is the "most targetted" faction of the communist party "because the Government is determined to destroy our existence", and "most of our party members are targetted and labelled as a terrorists".

i) His present fear is "looking at the political situation in the country, I'll be foolish to go back and get myself killed because of suppression against our party and our activists".

15. The Tribunal's reasons provide its identification of the applicant's claims under the heading "Claims and Evidence" as follows:

The applicant is a 29 year old man from Kathmandu with incomplete tertiary training who worked for an NGO as a translator/typist before leaving for Australia to undertake a course in business management.

He has claimed that he left his country as a student as he had been harassed by the authorities due to his political opinion. He claims to have been a prominent member of the Samyukta Jana Morcha, the "United People's Party" (UPF). He had had an interest in the Communist Party since his schooldays, and had become a member during the Panchayat period when people where "harassed by the authorities and questioned because of our political opinion". Later, when the Congress Party came to power the harassment continued. The Communist Party combined with the Marxist-Leninist factions for at time, but this was ultimately unsuccessful. When the Communists lost power in 1995 there were attempts to suppress the movement to prevent it coming back into power. The applicant went to college in India between 1985 and 1987 to escape, he claims, continuing danger.

The applicant obtained a visa from Australia in Kathmandu in January 1996 and arrived in February of that year. When his father fell ill he returned to Nepal where he stayed for three weeks in October and November 1996 before coming back to Australia. He has claimed that he was obliged to return as he was the only son in his family and had to perform the traditional Hindu funeral rites, and that he remained in hiding in Kathmandu during this period.

Before the Tribunal the applicant gave a satisfactory account of the recent history of leftist politics in Nepal. He stated that as a UPF member he had always felt insecure. He had received phone calls threatening his life and suffered humiliation and discrimination in public. He said that if he were to leave the UPF he would be targeted by its membership but if he stayed he would be targeted by other parties.

16. In my view this was a seriously inadequate summary of the claims which the applicant had made, and which it was the duty of the Tribunal to address by reference to the Convention definition. In particular, it makes no reference to those parts of the applicant's claims which suggest that, as a result of his party's Maoist insurgency activities conducted after his departure from Nepal, he would be at risk of harassment by the agents of the constitutional government and its supporters including by interrogation and even death by reason of an actual or perceived association with the group or with its insurgency activities.

17. As a result of this omission, I consider that at this point in its reasoning a real concern must arise whether the Tribunal when identifying the claimed basis for a fear of persecution which it was required to address has overlooked very significant elements of the applicant's claim for refugee protection. If the Tribunal failed to consider these elements, then it is likely that it may have substantially underestimated the foundation for fears of a former member of the SJM that government agencies and their supporters would adopt severe persecutory measures against all perceived supporters or members of a terrorist or insurgency party regardless of the extent of their actual involvement in the previous activities of that party.

18. I consider that confirmation that the Tribunal did overlook these significant elements in the applicant's claim is found in its one page reasoning process set out under the heading "Findings and Reasons":

I accept that the applicant may have been attracted to the leftist policies of the Samyukta Jana Morcha, or the United People's Front (UPF) in his youth and may have become a party member. I do not, however accept that he received threatening phone calls, was humiliated and discriminated against in such a manner as amounts to persecution in the Convention sense. While I do accept that the expression of political differences in Nepal as elsewhere can sometimes lead to unpleasantness the applicant has not demonstrated that he has been targeted as an individual or as a member of a group for his political opinion.

The applicant has stated that he was forced to flee to India to go to college from 1985 until 1987 to escape harassment from his political opponents. According to documents on file this was immediately after his graduation from high school, when he was seventeen years old. Further education in India is not uncommon for children of the Nepalese upper classes, and I do not accept that he left his country at this time for reason of his political opinion.

The applicant stated in his application that he was employed by the same organisation from 1990 until his departure from Nepal. From this I infer that his life was not seriously disrupted by others because of his political activities. Nor do I consider his fear of being targeted by members of his own party should he resign well-founded. The fact that he was able to return to Nepal legally at the end of 1996 and was not detained by the authorities on arrival or departure or otherwise mistreated by his party or by his political opponents during this period reinforces this. Although the applicant has claimed that he remained in hiding during the period when he returned, if he was of any particular interest to one or other of the political entities in Nepal they would have become aware of his presence at his father's funeral, which as he himself has stated was imperative from him to attend and as the only son perform the appropriate rituals.

The independent evidence cited above shows that the political party which the applicant has claimed to belong is still in force in Nepalese politics. The political situation in Nepal is typical of many countries experiencing the beginnings of democracy, and the limits of political practice and behaviour are still being tested. I find that any discrimination the applicant may have suffered for reason of his political opinion, including the claimed threatening telephone calls and public humiliation, would have resulted from the democratic expression of political difference, and that his fear of persecution of return for reason of his political opinion, or for any other Convention reason is not well-founded.

19. I consider that a fair reading of this passage shows that the Tribunal addressed the applicant's claims on the basis that:

a) It was sufficient to assess his current fears against his experiences before arriving in Australia when, in the course of his past political activities, he suffered "threatening phone calls, was humiliated and was discriminated against"; and

b) No consideration was given to the more substantial foundation for his present fears of persecution by reason of his perceived association with a party which, subsequent to his departure from Nepal, was alleged to be conducting terrorist or insurgency activities against the constitutional government.

20. Of course, an assessment of past experiences cannot be irrelevant and will often be the significant step in a reasoning process which assesses whether fears of persecution on return to a former country are "well-founded". However, the Tribunal will not complete the task of applying the Convention test if it limits itself to assessing whether a claimant's past experiences amount to "persecution" in circumstances where an additional or essential element in the applicant's case is that government perceptions and responses to membership of a political party have worsened or hardened subsequent to those past experiences due to more recent political (in the broadest sense) developments (c.f. Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [21]).

21. I am permitted to infer a failure to address an essential element in claims made by the applicant from the absence of any discussion of the element in the Tribunal's description of its critical reasoning process (Minister for Immigration and Multicultural Affairs v Yusuf (supra) at [10], [35], [69], 75]), and in this case I am prepared to draw that inference taking into account the whole of the Tribunal's reasons. I consider that the applicant's claim based on fear of being now perceived as an associate of a currently active terrorist insurgency was of such importance that a Tribunal, if it had indeed turned its attention to considering the claim, would inevitably have provided reasons for rejecting it before affirming the refusal of a protection visa. I can find no suggestion, even obliquely, in the reasons given by the present Tribunal that it has done this, giving full weight to the requirement that its reasons should not be "scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" (Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272).

22. Moreover, I accept the applicant's submissions that this inference finds support in the Tribunal's expressed reasons. Thus:

a) In the first paragraph of its "findings and reasons" quoted above the Tribunal appears to accept that the applicant had experienced threatening phone calls, and was humiliated and discriminated against, but it characterised these experiences as not occurring "in such a manner as amounts to persecution" because these concerns were no more than an "expression of political difference in Nepal" and was no more than "unpleasantness". I find it most difficult to accept the respondent's submission that this finding was also intended to apply to the situation feared by the applicant in 1998 as a result of being perceived to be an adherent of a party engaged in a terrorist insurgency. Rather, it suggests that the Tribunal saw its task as ending with a characterisation of the past experiences of the applicant before he left Nepal and before that perception had developed.

b) The same analysis of the Tribunal's reasoning seems to be confirmed by the Tribunal's penultimate opinion that "any discrimination the applicant may have suffered for reason of his political opinion, including the claimed threatening telephone calls and public humiliation, would have resulted from the democratic expression of political difference" which leads to its conclusion that "his fear of persecution on return for reason of his political opinion, or for other Convention reason, is not well-founded." I find it inconceivable that a Tribunal, properly addressing the fears of a member of a political party which had turned to terrorist insurgency, could characterise those fears as resulting from "the democratic expression of political difference". I conclude that the Tribunal failed to appreciate that the applicant's fears had a broader foundation than his experiences at a time when his party was involved only in "democratic" political processes.

23. I therefore consider that the Tribunal erred by failing to address significant claims or components of his claim to satisfying the Convention definition, and that its decision was therefore not an exercise of the jurisdiction which it was required to exercise.

24. The applicant's amended application and his counsel's submissions did not focus his argument clearly at the error I have identified above. However, I consider that it sufficiently arises from ground 1(iii), which asserts that "the RRT fell into jurisdictional error ... in that ... it at no stage applied the correct test in relation to whether the applicant had a "well founded fear of persecution", in particular not considering the issue at the date of determination." In the course of his oral submissions, counsel argued that the Tribunal's failure to address the issue at the date of determination was shown by its failure to examine the situation then facing a member of a political party which had turned to terrorist insurgency as distinct from a member of the other Nepalese communist parties which were participating in democratic processes. In effect, his argument was that there was a failure to address an essential component of his client's claim to the present protection of the Convention definition. He also put other arguments to establish jurisdictional error, but I need not address these.

25. Counsel for the Minister met the issue identified above by arguing against the interpretation of the Tribunal's reasoning which I have set out above. He drew my attention to two parts of the reasons which he submitted showed a proper appreciation of the full extent of the applicant's claims.

26. First, he pointed out that the Tribunal under the heading "Independent evidence" had extracted part of a cable from the Australian Embassy in Kathmandu dated 8 February 1997 which gave a short description of the SJM. Within that description is found a reference to the group in the SJM to which the applicant claimed past association: "in early 1996 [it] chose a radical path and [is] alleged to be behind the Maoist insurgent activities (declared as "peoples war") reported in a number of remote hilly areas of Nepal these days."

27. I agree that by setting the passage out, the Tribunal must be taken to have read the statements in the cable in the course of writing its reasons. However, the Tribunal makes no comment on nor subsequent reference to the corroboration given by the cable to the applicant's fears related to recent SJM insurgent activities. Rather, its subsequent discussion of Nepalese politics seems to treat the SJM as being just another "opposition" party competing for government through electoral processes. I consider that the Tribunal's over-all reasoning in this section of its reasons tends to confirm that it misapprehended a significant factor in the applicant's fears of persecution, rather than to suggest the converse.

28. Secondly, the respondent's counsel drew my attention to the first sentence in the Tribunal's penultimate paragraph, in which it says "the independent evidence cited above shows that the political party to which the applicant has claimed to belong is still a force in Nepalese politics." He submitted that this should not be read in the manner suggested by the applicant's counsel, which was that the sentence showed that the Tribunal had confused the SJM with the Marxist-Lenninist communists who were participating in constitutional government and democratic political processes. Counsel for the respondent submitted that the reference to "is still a force in Nepalese politics" was an oblique reference back to the evidence that the SJM was using insurgency terrorist tactics, and submitted that the Tribunal used the word "politics" in the broadest sense.

29. I accept this submission to the extent that I agree that the Tribunal's reference to "the political party to which the applicant has claimed to belong" should not be read as mistaking the applicant's SJM party with the Marxist-Leninist communist party of Nepal. However, in the context of the subsequent sentences, in which the Tribunal finds the applicant's fears to result from "the democratic expression of political difference", I do not accept that this sentence shows an appreciation of an essential basis of the applicant's fears. Rather, I consider that the Tribunal's reference to "Nepalese politics" is to the politics of "the beginnings of democracy" and that it tends to confirm that the Tribunal had overlooked the significance of the applicant's fear of being perceived to be an associate of terrorist enemies of democratic political processes.

30. My reading of these passages and of the over-all structure and content of the Tribunal's reasons, together with the particular flaws which I have identified above, persuades me that in fact the Tribunal failed to give consideration to a significant part of the applicant's claims to a protection visa.

31. For the above reasons, I consider that the applicant has established that the Tribunal failed to exercise its jurisdiction, and that its decision is therefore not a "privative clause decision". It is therefore open to the Court to give relief by quashing the purported decision and ordering the Tribunal to hear and determine the application before it according to law.

32. The respondent submits, however, that relief should be refused.

33. The "correct approach" to the analogous jurisdiction of the High Court in relation to constitutional writs, is that "if a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved" relief including a writ of prohibition "will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper approach" (per Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 133, adopted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [51-2] with whom Gleeson CJ and Hayne J agreed, and by Kirby J at [149]). Reasons which may be relevant are "delay, waiver, acquiescence or other conduct or the prosecutor"; whether "a party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice" and "the high purposes of vindicating the public law of the Commonwealth" etc (c.f. Aala (supra) at [53], [148-9]).

34. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251 at [65] Lehane J said: "it must be a rare case indeed where the Court finds, on an application properly before it, that a decision was invalid for want of jurisdiction, but nevertheless refuses to set the decision aside. The discretion might be exercised to refuse relief in a case where the applicant's conduct was unreasonable or improper. Excessive delay in seeking relief may also lead to its refusal, particularly in circumstances where the relief is likely to be futile" (citations omitted). The other Justices in the Full Court in Bhardwaj and in the High Court did not need to consider the exercise of discretion.

35. In his affidavit sworn on 1 September 2004 and his oral evidence under cross-examination (which I accept), the applicant accounted for the delay in the present case as follows:

a) He had not received any assistance from a legal or other adviser in the course of his Tribunal appeal, but when he received its decision dated 20 August 1998 he sought advice from an adviser at Parramatta Immigration Services.

b) That adviser did not suggest taking any court action, but recommended seeking a discretionary decision by the Minister under s 417 of the Migration Act, which permits the Minister to substitute a more favourable decision if "it is in the public interest to do so."

c) A letter in the Court Book confirms that such an application was made on 30 September 1998, and that on 9 June 1999 the Minister "decided not to consider exercising his power in this case."

d) The applicant then, in about July 1999, sought advice from a solicitor who was representing numerous applicants in a class action which was running in the High Court. A document is in evidence headed "Schedule of Represented Parties" which identifies the applicant as a "represented party" in relation to the present Tribunal decision, and is signed by that solicitor and dated 16 July 1999, but no further details as to the applicant's involvement in the Nancy Lie class action is in evidence. The respondent did not, however, dispute that the applicant had been joined as a represented party in accordance with procedures which were accepted at the time by the High Court and Minister, and which notoriously led to thousands of people attempting to contest decisions of the Refugee Review Tribunal dating back to 1998, and being given permission to remain in Australia pending the outcome of the "test" cases which eventually led to Full Court judgments on stated cases in relation to two of the applicants: Muin and Lie v Refugee Review Tribunal [2002] HCA 30 given on 8 August 2002.

e) The subsequent history of the "represented parties" in these cases, and of the applicant's involvement in them in particular, is not in evidence before me. However, I consider that I can take note of relevant events recorded in judgments of the Federal Court in the course of dealing with applications by these people which were remitted by the High Court. Thus, from the judgment of Emmett J given on 20 February 2004 in Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289, from which leave to appeal was refused by Jacobson on 4 May 2004 (see [2004] FCA 577), it appears that the solicitor acting for the applicant and others was in mid 2003 still reviewing the merits of his clients' cases and seeking discovery from the Minister. Emmett J did not accept that this justified a failure to show arguable grounds for applications for orders nisi, but left the door open for such grounds to be put forward in fresh proceedings, including in this Court.

f) The present applicant's evidence must be considered in this context, and in a context where the respondent has not attempted to explain to me from her own records what happened in relation to the applicant's presence in the Schedule of represented parties in the Nancy Lie High Court matter. Nor has she explained the delay in taking any action to detain him for removal from Australia, or presented any argument that she has been relevantly prejudiced by the applicant's delay.

g) The present applicant says, and I accept, that he believed that he remained a client of the solicitor and a represented party in the High Court proceedings when, in October 2002 he received a letter informing him "we win class action - what it means to you" and requesting further funds. When he contacted the solicitor's firm he was told "you are in the class action".

h) He says that this advice changed in about June or July 2003, when he was told orally by a person in the solicitor's firm (he was never able to speak to the solicitor at this time) that the solicitor would no longer be his legal representative because he (the applicant) was from Nepal, that he was already excluded from the class action and that there was nothing the solicitor could do for him. There is no evidence, and it was not suggested to the applicant in cross-examination, that at this time he received any proper legal advice, any suggestion that he could or should seek advice from other sources, or any assistance whatsoever from any person or agency in relation to his concerns about the Tribunal's decision.

i) Instead, as a result of this conversation, he thought he could not get any further help, and he made no attempt to get further legal advice or assistance until, on 31 May 2004, he was taken into detention at Villawood Detention Centre.

j) He says that he there received advice and assistance, as a result of which he promptly filed the present application on 7 June 2004. He was subsequently referred to his present solicitors, Messrs Ebsworth and Ebsworth, who have filed the amended application and instructed counsel who appeared before me.

k) In the body of his original application he states, inter alia: "my mother recently passed away and I couldn't go [to Nepal] because of the threat to me and my safety is way higher now than it was when my father died. Plus over the time, the political situation in Nepal is being deteriorated. In short, I would like my case to be heard seriously and my wish to seeking refuge in Australia be granted."

36. Apart from this assertion that his risks of persecution have increased (upon which he was not cross-examined), neither party led any evidence as to the current risks attaching to former or perceived members of the SJM. Such evidence would not have been relevant to my decision on whether the Tribunal's 1998 decision was affected by jurisdiction error, and would certainly of itself not allowed me to set aside the decision (see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343). However, it may have been relevant to issues of discretion.

37. In the present situation, all I should note is that the Minister does not contend that a remitter to the Tribunal would serve no practical purpose due to some beneficial change in the relevant circumstances of Nepal, and that he has led no evidence to establish this proposition. In view of my conclusion that the Tribunal has failed to assess a very significant element favouring the applicant's claims to have the protection of the Convention definition as adopted by the Migration Act, and in view of the nature of his stated fears, I must weigh as a substantial reason against refusing relief the potential effect of denying the applicant an order recognising his entitlement under Australian law to a proper hearing by the Tribunal. That effect could be that Australia could deport the applicant to Nepal without having reviewed his refugee status according to the procedures set out in the Migration Act.

38. It is true, and conceded by both parties, that should the applicant be refused relief by this Court, he would have an opportunity to petition the Minister for an exercise of his personal discretion under s.48B to lift the prohibition under s.48A against second applications for a protection visa. However, this discretion requires the Minister to "think that it is in the public interest to do so", and to justify her opinion to the Parliament. In the present cases, there may or may not be strong public interests involved, but I am entirely unable to assess these or predict how they may be assessed by a Minister. I can give this consideration little weight as either favouring or supporting a denial of relief.

39. The considerations favouring a refusal of relief where there is unexplained delay are strong, and has been articulated in cases which emphasise the public interest in finality in relation to administrative decision-making (c.f. Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at [15], cited in Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489). This consideration may become a determining factor against applicants where they need to obtain an order for an extension of time for applying to the Court, and it remains a significant consideration even where, as at present, the applicant does not need the Court's indulgence to extend a time limit restricting his commencement of proceedings in this Court. The public interest in giving finality to decisions of the Tribunal remains a strong consideration in my mind in this case.

40. Ultimately, I have decided that the applicant has shown a sufficient explanation of how he has attempted to keep alive his challenge to the legality and correctness of the Tribunal's decision, at least until June 2003. There remains a real concern that in the 11 months until he was arrested he had abandoned his attempts to mount a challenge.

41. In the context of the Court's discretion to refuse relief under s 16 of the ADJR Act, Sheppard J suggested that it was appropriate to take "a broad, commonsense" approach "when the conduct of a party seeking review is impugned for the purpose of establishing that there are discretionary reasons why the Court's jurisdiction should not be exercised." He continued: "What a party has done or said ought not to be looked at narrowly, nor with too critical an eye. Whether the problem arises in the field of commerce, as is the case here, or in some other field, for example, migration or social services, a broad and realistic approach is required. A party faced with government action may not always act as others may expect him to. He may take different stands at different times. He may quite properly take advantage of particular circumstances as they appear to him at the time. If he acts in this way, he should not, ordinarily speaking, lose the right to have an unlawful decision set aside." (Peko Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532 at 561, not criticised on appeal in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985) 162 CLR 24 at 31, 47, 67, 71)

42. This was said in a different context than the present, but I consider that the approach suggested by Sheppard J may inform my exercise of discretion in the present situation. From that approach, the applicant's response to what, on the evidence before me, was woefully inadequate advice and assistance given by his solicitor in the Nancy Lie matter in 2003, should be given understanding, and his delay in seeking better advice should be considered in the context of someone unaccustomed to Australian legal processes who had previously attempted to challenge the Tribunal's decision over many years.

43. In the added context of a clear failure by the Tribunal to exercise jurisdiction, the absence of a time limit on the exercise of the Court's jurisdiction, a substantial risk of severe prejudice to the applicant if he is unable to obtain the exercise of that jurisdiction, no specific prejudice to another party by allowing that to happen, and the long period during which the respondent was aware of and acquiesced in the applicant's participation in the Lie matter, I have decided that it would not be "the proper course" (c.f. Gibbs CJ in R v Ross-Jones (supra)) to refuse relief in the present case. I have had full regard to the broader public interests pointing for and against leaving the Tribunal's 1998 decision intact and the applicant without remedy for its invalidity, but I consider that these considerations are evenly weighted in the particular circumstances of this case. Overall, I am not persuaded to decline to order the issue of writs of certiorari, mandamus and prohibition as sought in the amended application (c.f. Aala (supra) at [84] and [152]).

44. I should record that neither party referred me to any authorities concerning the refusal of relief for delay until after the hearing, when at my request they each referred me to some cases in which delay by "represented parties" in the Muin and Lie matters was considered. The applicant cited SZAOV v Minister for Immigration [2004] FMCA 223, VWBS v Minister for Immigration [2004] FCA 464, SZAOU v Minister for Immigration [2004] FMCA 451, and SZEDF v Minister for Immigration [2004] FMCA 497. The respondent cited NAUV v Minister for Immigration at first instance [2003] FCA 1319 and on appeal [2004] FCAFC 124, and SZCTH v Minister for Immigration (No 2) [2004] FMCA 284. I have read these cases, and it is enough for me to note that they involved factual circumstances different to the present, and presented issues of delay in different ways. I do not regard my decision in the present case as being inconsistent with any of those judgments.

45. There is a procedural difficulty in making the orders sought by the applicant in the proceedings as presently constituted. In particular, the applicant, while seeking a writ of certiorari to quash the Tribunal's decision and a writ of mandamus directing it to hear and determine the applicant's appeal, has not joined the Tribunal as a party which would be bound by these orders. Instead, the Minister only was joined, perhaps overlooking that the direction in s 479 of the Migration Act that the Minister should be the respondent applies only to "a review of a privative clause decision". This provision in my opinion does not justify the making of orders by way of certiorari and mandamus in relation to decisions which are not privative clause decisions in the absence of the decision-maker joined as a respondent.

46. When I raised this difficulty in the course of the hearing, both counsel agreed that the Tribunal should be joined and be given an opportunity to make a submitting appearance, before orders were made in favour of the applicant.

47. I therefore shall direct that the matter be listed for the making of further orders as to the joinder of the Tribunal and otherwise as the parties may propose in the light of my above reasons. Provisionally, I see no reason why the applicant should not be awarded his costs, but I shall also hear any submission which the parties wish to make on this topic both as to liability and quantum.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 14 September 2004
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